28
continuing and multiple offense nature of forced disappearance of persons is reflected in
Articles II and III of the Inter-American Convention on Forced Disappearance of Persons,
which, in this regard, establish the following:
For the purposes of this Convention, forced disappearance is considered to be the act
of depriving a person or persons of his or their freedom, in whatever way, perpetrated
by agents of the State or by persons or groups of persons acting with the
authorization, support, or acquiescence of the State, followed by an absence of
information or a refusal to acknowledge that deprivation of freedom or to give
information on the whereabouts of that person, thereby impeding his or her recourse
to the applicable legal remedies and procedural guarantees.
[…] This offense shall be deemed continuing or permanent as long as the fate or
whereabouts of the victim has not been determined.
107. The need to consider the offense of forced disappearance in toto, as an autonomous
offense of a continuing or permanent nature with multiple intricately interrelated elements
arises not only from Articles II and III of the Inter-American Convention on Forced
Disappearance of Persons, but also from the travaux préparatoires for this Convention,64 and
from its preamble. 65
108. Likewise, the Court observes that Article 1(2) of the 1992 United Nations Declaration on
the Protection of all Persons from Forced Disappearance indicates that forced disappearance
constitutes:
[A] violation of the rules of international law guaranteeing, inter alia, the right to
recognition as a person before the law, the right to liberty and security of the person
and the right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment. It also violates or constitutes a grave threat to the right to
life.
109. Moreover, Article 17(1) of this Declaration indicates that the forced disappearance of
persons 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
remain unclear.” Article 8(1)(b) of the International Convention for the Protection of all
Persons from Forced disappearance, adopted by the United Nations General Assembly on
December 20, 2006, contains a similar text.66
64
Cf. Annual Report of the Inter-American Commission on Human Rights 1987-1988, Chapter V.II. This
offense “will be considered continuing or permanent as long as the whereabouts or the fate of the victim has not
been established.” (OEA/CP-CAJP, Report of the President of the Working Group responsible for examining 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).
65
Cf. Preamble to the Inter-American Convention on Forced Disappearance of Persons, in which it is considered
“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.”
66
In this regard, Article 8(1)(b) of the International Convention for the Protection of all Persons from Forced
Disappearance establishes that:
[…]
A State Party which applies a statute of limitations in respect of forced disappearance shall take the
necessary measures to ensure that the term of limitation for criminal proceedings:
[…]
Commences from the moment when the offences of forced disappearance ceases, taking into account its
continuous nature. […]”