2 6. Based on the above, we must examine the elements of forced disappearance that appear in the 1994 Convention: (a) deprivation of liberty; in other words, violation of personal liberty as the nucleus or principal element of the unlawful conduct, conditio sine qua non for the other components to take effect; (b) irrelevance of the way in which this is perpetrated: whether unlawfully or arbitrarily (and even though the onset may be legal owing to the existence of a judicial arrest warrant or flagrante delicto); (c) by State agents or third parties whose conduct involves the State’s international responsibility (by act or omission), an issue that the Court has examined extensively; (d) subsequent absence of information on the deprivation of liberty; (e) in the same circumstances, refusal to acknowledge this deprivation; (f) in the same circumstances, refusal to provide information on the whereabouts of the person, and (g) result of these conducts (whether or not deliberate): impediment to the exercise of the legal remedies and pertinent procedural guarantees (to combat and end the violation, which is unacknowledged and about which no information is provided: violation of personal liberty). The offense of forced disappearance is summarized in this series of elements (with the alternatives they include), which provide the obligatory frame of reference for examining the matter, both in general and in specific cases. 7. The juridical nature of the violation that constitutes the central element of the offense examined in the context of these factual assumptions must be defined from a dual perspective: the conduct of the agents and its adverse effect on the human and juridical rights of the victim, and the implications of those acts in relation to those rights; that is, the identification of the juridical and human rights that have been violated. In other words: what are the violations inherent in forced disappearance? That is, the violations that are consubstantial with it, and inseparable or characteristic of it, because they are “intertwined” in this offense; the elements required by the definition itself, in the absence of which there would be no forced disappearance, even though there could be other acts that violate human rights. Since I have used the phrase “inherent in forced disappearance,” I should recall the academic acceptance of inherence “the union of things that are inseparable due to their nature, or that can only be separated mentally and by abstraction.” 8. Regarding the first question posed, the Court has always understood that forced disappearance is an act – or conduct or situation or circumstance – that is prolonged, uninterrupted, over time. While the conduct persists, the violation subsists, without ending its continuity. It is unique and constant. We have often resorted to concepts of criminal law, which provides the best description of the offense being examined. From this discipline, we obtain the definition of the offense, as regards the conduct of the agent and his impact on the consummation of the crime: the persistence of the acts that involve a specific type of result. 9. In the hypothesis of the instantaneous offense, the consummation occurs once, “with a single blow,” if you will allow me to use this expression. In the continuous crime (using a specific terminology), the unlawful conduct is fragmented over time: it begins and ceases, with unity of active and passive subjects and breaking the same norm. (It is not necessary to recall now why the different offenses that are committed under this heading have been grouped into one under the fiction that there is “one” continuous offense.) And, in the continuing or permanent offense, the unlawful conduct, the typical result, the violation of the norm persist, without interruption, for a greater or lesser time. This is precisely what happens in the hypothesis of unlawful deprivation of liberty, until the deprivation ceases. The same thing occurs in the case of abduction or kidnapping, which are aggravated forms of deprivation of liberty. And also in forced disappearance, a conduct of unmatched gravity and a crime against humanity, which also entails deprivation of liberty. 10. The second question posed corresponds to the human and juridical rights affected by forced disappearance. Clearly, I am not including here the “other” juridical and human rights

Seleccionar párrafo de destino3

Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos