63
83.
The need to consider integrally the offense of forced disappearance of an
autonomous, continuing or permanent nature, composed of multiple elements with
their complex interrelationships, and related criminal acts, can be deduced not only
from the its definition in the abovementioned Article III of the Inter-American
Convention on Forced Disappearance of Persons, the travaux préparatoires for this
instrument,65 its preamble and provisions, but also from Article 17(1) of the 1992
United Nations Declaration on the Protection of all Persons from Forced
disappearance, which even adds one further element, related to the obligation to
investigate, by indicating that this must be considered “a continuing offence as long
as the perpetrators continue to conceal the fate and the whereabouts of persons who
have disappeared and these facts have not been clarified.” International case law
also reflects this understanding,66 as do Articles 4 and 8(1)(b) of the
abovementioned United Nations international convention on this matter.
84.
In brief, the Court finds that, as may be deduced from the preamble to the
aforesaid Inter-American Convention,67 faced with the particular gravity of such
offenses and the nature of the rights harmed, the prohibition of the forced
disappearance of persons and the corresponding obligation to investigate and punish
those responsible has attained the status of jus cogens.
85.
To sum up, the above findings on the offense of forced disappearance of
persons respond to the need to prevent and protect against this type of act. Thus,
although classified as violations of the right to life, humane treatment and personal
liberty, the fact that this judgment deals with the specifics of the instant case as a
series of factors that compose the forced disappearance of victims is in keeping with
the continuing or permanent nature of this phenomenon and the need to consider
the context in which the violations occurred, examine their effects over time and
consider their consequences as a whole.
(b)
The State’s international responsibility increased because the facts
occurred within the framework of “Operation Condor” and due to
failure to comply with the obligation to investigate them effectively
86.
As established in the section on proven facts (supra paras. 61(15) to 61(50)),
the surveillance of Dr. Agustín Goiburú and his family continued after he abandoned
Paraguay in 1959 and went into exile in Argentina. Several documents discovered in
65
Cf. Annual Report of the Inter-American Commission on Human Rights 1987-1988, Chapter V.II.
This crime “is permanent because it is committed permanently, rather than instantaneously, and it
continues while the person remains disappeared” (OEA/CP-CAJP, Report of the President of the Working
Group responsible for examine the draft Inter-American Convention on Forced Disappearance of Persons,
doc. OEA/Ser.G/CP/CAJP-925/93 rev.1, of January 25, 1994, p. 10).
66
Cf. European Court of Human Rights, Cyprus v. Turkey, judgment of 10 May 2001, Application No.
25781/94, paras. 136, 150 and 158; United Nations Human Rights Committee, Ivan Somers v. Hungary,
Communication No. 566/1993, 57th session, CCPR/C/57/D/566/1993 (1996), July 23, 1996, para. 6.3; E. and
A.K. v. Hungary, Communication No. 520/1992, 50th session, CCPR/C/50/D/520/1992 (1994), May 5 1994,
para. 6.4, and Solorzano v. Venezuela, Communication No. 156/1983, 27th session, CCPR/C/27/D/156/1983,
March 26, 1986, para. 5.6.
67
Considering that the forced disappearance of persons violates numerous non-derogable and
essential human rights enshrined in the American Convention on Human Rights, in the American
Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights. (InterAmerican Convention on Forced Disappearance of Persons, preamble).
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