28
66.
The international community has known the phenomenon of enforced
disappearance of persons since the 1980s. The Working Group on Enforced or
Involuntary Disappearances of Persons of the United Nations developed, in that
decade, an operative definition of the phenomenon, highlighting the illegal detention
by State agents or government branches or by an organized group or private
individuals allegedly acting on behalf of, or with the support, permission, or
acquiescence of the State. 70 The elements established by the mentioned Working
Group have subsequently been used in definition of different international
instruments.
67.
Recently, the aforementioned Working Group, in consideration of the
definitions contained in the Declaration, in the International Convention, and in the
Rome Statute, and in the American Convention, broadened the concept of enforced
disappearance, inter alia, in the following terms:
3. The Working Group has stated, in its General Comment on Article 4 of the Declaration that,
although States are not bound to follow the definition contained in the Declaration strictly in their
criminal codes, they shall ensure that the act of enforced disappearance is defined in a way that
clearly distinguishes it from related offenses such as abduction and kidnapping.
5. In accordance with article 1.2 of the Declaration, any act of enforced disappearance has the
consequence of placing the persons subjected thereto outside the protection of the law. […]
6. Indeed, under the Methods of Work clarification occurs when the whereabouts of the
disappeared persons are clearly established irrespective of whether the person is alive or dead.
However, this does not mean that such cases would not fall within the definition of enforced
disappearance included in the Declaration, if (i) the deprivation of liberty took place against the
will of the person concerned, (ii) with involvement of government officials, at least indirectly by
acquiescence, and (iii) state officials thereafter refused to acknowledge the act or to disclose the
fate or whereabouts of the person concerned […]
7. Under the definition of enforced disappearance contained in the Declaration, the criminal
offense in question starts with an arrest, detention, or abduction against the will of the victim,
which means that the enforced disappearance may be initiated by an illegal detention or by an
initially legal arrest or detention. That is to say, the protection of a victim from enforced
disappearance must be effective upon the act of deprivation of liberty, whatever form such
deprivation of liberty takes, and not be limited to cases of illegitimate deprivations of liberty.71
70
Cf. Case of Chitay Nech et al., supra note 63, para. 82, and Case of Ibsen Cárdenas and Ibsen
Peña, supra note 9, para. 58. Cf. moreover, Report of the Working Group on Enforced or Involuntary
Disappearance, Human Rights Commission, 37º period of sessions, U.N. Doc. E/CN.4/1435, of January 22,
1981, para. 4, and Report of the Working Group on Enforced or Involuntary Disappearance, Human Rights
Commission, 39º period of sessions, U.N. Doc. E/CN.4/1983/14, of January 21, 1983, paras. 130 to 132.
71
Working Group on Enforced Disappearances, General Comment on the definition of enforced
disappearance. Available at http://www2.ohchr.org/english/issues/disappear/docs/disappearance_gc.doc,
last visited on February 23, 2011.
3. The Working Group has stated, in its General Comment on article 4 of the Declaration that,
although States are not bound to follow the definition contained in the Declaration strictly in their
criminal codes, they shall ensure that the act of enforced disappearance is defined in a way that
clearly distinguishes it from related offences such as abduction and kidnapping.
5. In accordance with article 1.2 of the Declaration, any act of enforced disappearance has the
consequence of placing the persons subjected thereto outside the protection of the law. […].
6. […] Indeed, under the Methods of Work clarification occurs when the whereabouts of the
disappeared persons are clearly established irrespective of whether the person is alive or dead.
However,s this does not mean that such cases would not fall within the definition of enforced
disappearance included in the Declaration, if (i) the deprivation of liberty took place against the
will of the person concerned, (ii) with involvement of government officials, at least indirectly by
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