4
15.
Such indifference as to the form of the deprivation of freedom has provided
the substance for the final draft of Article 2 for a convention on forced
disappearance, adopted by the United Nations ad hoc Working Group on Enforced or
Involuntary Disappearances on September 23, 2005. The related text lists, but
ultimately without limitation, certain specific ways in which deprivation of freedom
may occur, in its largest meaning: “arrest, detention, abduction or any other form of
deprivation of liberty.”
16.
The foregoing considerations do not completely cover the description of the
conduct contained in the Inter-American Convention. This incorporates other
necessary references to classify the conduct of the person responsible for instances
of forced disappearance: a) absence of information on that deprivation of freedom;
b) refusal to acknowledge that deprivation or (in the alternative); c) refusal to give
information on the whereabouts of that person. In the first case, there is a failure to
inform; in the second and third cases, information is refused. The description of the
illegal act would be altered if either of these characteristics of the conduct was
eliminated, my comments contained in paragraph 28 of this Opinion notwithstanding.
17.
Other international systems include expressions that are partially coincidental
with the one set forth in the Inter-American Convention. The Statute of the ICC
refers to a “refusal to acknowledge that deprivation of freedom or to give information
on the whereabouts of [the] person[s]" arrested, detained or abducted. The United
Nations project mentions: “refusal to acknowledge that deprivation of freedom” or
“to give information on the whereabouts of that person.”
18.
B) References to the persons involved: i) there are no specific references to
the person affected by the conduct: one or more persons; i.e. any number of
individuals, irrespective of any specific characteristic, and ii) there are references as
to the individual responsible for the conduct: he or she may be an agent of the
State; i.e. a person holding or performing a public position, rank, commission or
activity, or (in the alternative), “persons or groups of persons acting with the
authorization, support, or acquiescence of the State.” In terms of the legal definition,
the punishable conduct may bring together individuals from both categories or
individuals from only one of these categories. In both cases, forced disappearance
will be deemed to have occurred. Thus, the provisions that set forth that this offense
can only be committed by public servants, without taking into account all other
categories of persons possibly responsible for that conduct, amounts to failure to
comply with the international commitment to establish a specific crime definition.
19.
The Statute of the International Criminal Court refers to the arrest, detention
or abduction of persons “by, or with the authorization, support or acquiescence of, a
State or a political organization.” Indeed, the wording is not entirely adequate. The
United Nations project advances along the path followed by the Inter-American
Convention: “agents of the state or […] persons or groups of persons acting with the
authorization, support, or acquiescence of the state.”
20.
C) The definition contained in Article II of the 1994 Convention includes
another expression worth examining: that those circumstances; i.e. the conduct
described attributable to certain individuals, “thereby imped[e] his or her recourse to
the applicable legal remedies and procedural guarantees.” It is necessary to examine
the scope of this phrase which, if analyzed loosely, may result in the absolute
impunity of forced disappearance.