4
the application of a rigid postulate of the law of treaties, to introduce an artificial
fragmentation in the consideration of that crime of forced disappearance, taking
into account - in an atomized and not integral way - only some of its components,
subsequent to this last date, - with direct consequences for the phase of
reparations.
9.
Such situation is, in my understanding, unsatisfactory and worrisome,
since forced disappearance of person is, first of all, a complex form of violation of
human rights; secondly, a particularly grave violation; and thirdly, a continuing or
permanent violation (until the fate or whereabouts of the victim is established).
In fact, the continuing situation (cf. infra) is manifest in the crime of forced
disappearance of persons. As pointed out in this respect, in the travaux
préparatoires of the Inter-American Convention on Forced Disappearance of
Persons,
"This crime is permanent in so far as it is committed not in an instantaneous way
10
but permanently, and is prolonged as long as the person remains disappeared"
.
.
Such consideration was duly reflected in Article III of the Convention (supra).
10.
The same conception can be found in the United Nations Declaration on
the Protection of All Persons against Forced Disappearances of 1992, which, after
pointing out the gravity of the crime of forced disappearance of person (Article
1(1)), likewise warns that this latter ought to be "considered a permanent crime
while its authors continue concealing the fate or whereabouts of the disappeared
person and while the facts have not been clarified" (Article 17(1)).
11.
Long before the typification of the forced disappearance of person in the
International Law of Human Rights, the notion of "continuing situation" found
support in the international case-law in the domain of human rights. Thus,
already in the De Becker versus Belgium case (1960), the European Commission
of Human Rights, for example, recognized the existence of a "continuing
11
situation" (situation continue/situación continuada) . Ever since, the notion of
"continuing situation" has marked presence in the case-law of the European
12
Commission, on numerous occasions . The continuity of each situation appears as the European Commission has expressly warned in the Cyprus versus Turkey
case (1983) - as an aggravating circumstance of the violation of human rights
13
proven in the cas d'espèce .
9.
OEA/CP-CAJP, Informe del Presidente del Grupo de Trabajo Encargado de Analizar el
Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas, doc.
OEA/Ser.G/CP/CAJP-925/93 rev.1, of 25.01.1994, p. 10.
10.
Cf. Cour Européenne des Droits de l'Homme, Affaire De Becker (Série B: Mémoires,
Plaidoiries et Documents), Strasbourg, C.E., 1962, pp. 48-49 (Rapport de la Commission,
08.01.1960).
11.
Cf., e.g., the decisions of the European Comission concerning the petitions ns. 7202/75,
7379/76, 8007/77, 7742/76, 6852/74, 8560/79 y 8613/79, 8701/79, 8317/78, 8206/78, 9348/81,
9360/81, 9816/82, 10448/83, 9991/82, 9833/82, 9310/81, 10537/83, 10454/83, 11381/85,
9303/81, 11192/84, 11844/85, 12015/86, and 11600/85, among others.
12.
In its Report of 04 October 1983 in the Cyprus versus Turkey case (petition n. 8007/77) the
European Commission concluded that the continuing separation of families (as a result of the refusal of
Turkey to allow the return of Greek Cypriots in order to reunite themselves with their next of kin in the
North) constituted an "aggravating factor" of a continuing situation in violation of Article 8 of the
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