48
personality, in violation of Article 3 of the Convention.
132. In recognition of the foregoing, the abduction and suppression of the identity
of María Macarena Gelman García as a consequence of the detention and subsequent
transfer of her pregnant mother to another State can be qualified as a particular
form of enforced disappearance of persons, for having the same purpose or effect,
upon leaving her clueless due to the lack of information regarding the fate or
whereabouts or the denial of acknowledgment, in the terms of the mentioned InterAmerican Convention. This is consistent with the concept and the constituent
elements of enforced disappearance already addressed (supra paras. 64 to 78),
amongst these, the definition contained in the International Convention for the
Protection of all Persons from Enforced Disappearance from 2007 which in its Article
2 refers to “and other form of deprivation of liberty.” Furthermore, this situation is
anticipated in Article 25 of this International Convention,152 and it has been
recognized by various international bodies on human rights protection. 153 In the
case of Uruguay, its domestic provisions recognize abducted children as victims of
enforced disappearances. 154
152
International Convention for the Protection of All Persons Against Enforced Disappearance, Article
25:
1. Each State Party shall take the necessary measures to prevent and punish under its criminal law:
( a ) The wrongful removal of children who are subjected to enforced disappearance, children whose
father, mother or legal guardian is subjected to enforced disappearance or children born during the
captivity of a mother subjected to enforced disappearance.
153
Cf. Report of the Working Group on Enforced or Involuntary Disappearance on its Mission to El
Salvador, Human Rights Council 7th period of sessions, U.N. Doc. A/HRC/7/2/Add.2, of October 26, 2007,
para. 23: “[o]ne phenomenon that occurred during the armed conflict in El Salvador was the enforced
disappearance of children. According to the sources consulted, the phenomenon was part of a deliberate
strategy within the violence institutionalized by the State during the period of conflict.According to those
sources, the children were abducted during the execution of military operations after which their families
were executed or forced to flee to save their lives. Children were frequently taken away by military chiefs
who brought them up as their own Children”; Report of the Working Group on Enforced or Involuntary
Disappearance in its Mission to Argentina, Human Rights Council, 10° period of sessions, U.N. Doc.
A/HRC/10/9/Add.1, of December 29, 2008, para. 10: “A specific phenomenon that occured[...] during
the military dictatorship [...] was the enforced disappearance of children, ando f childrenborn in
captivity. Children were abducted, stripped of their identity and taken from their families. There was also
frequent abduction of children by military leaders who included the children in their families,” and Report
of the Working Group on Enforced or Involuntary Disappearance, Human Rights Council, 10° period of
sessions, U.N. Doc. A/HRC/10/9, of February 25, 2009, para. 456: “children are also victims of
disappearances, both directly and indirectly." The disappearance of a child, the wrongful removal and
the loss of a parent due to their disappearance are serious violations of children's rights." On the
recognition of the phenomenon of enforced disappearance of children in situations of armed conflict or
military dictatorships, see Committee on the Rights of the Child, Consideration of Reports submitted by
States parties under Article 44 of the Convention in respect of: Argentina, 31° period of sessions, U.N.
Doc. CRC/C/15/Add.187, of October 9, 2002, paras. 34 and 35; El salvador, 36° period of sessions, U.N.
Doc. CRC/C/15/Add.232, of June 30, 2004, paras. 31 and 32; El Salvador, 53° period of sessions, U.N.
Doc. CRC/C/SLV/CO/3-4, of February 17, 2010, paras. 37 and 38, and Guatemala, 55° period of sessions,
U.N. Doc. CRC/C/GTM/CO/3-4, of October 25, 2010, para. 87. Finally, see also Human Rights Commission
of the United Nations, Issue of enforced or involuntary disappearance, resolutions: 53ª sessions, U.N. Doc.
E/CN.4/RES/1995/38, of March 3, 1995, para. 23; 57ª session, U.N. Doc. E/CN.4/RES/1997/26, of April
11, 1997, para. 2.d; 51ª session, U.N. Doc. E/CN.4/RES/1998/40, of April 17, 1998, para. 2.d; 55ª
session, U.N. Doc. E/CN.4/RES/1999/38, of April 26, 1999, para. 2.d; 60ª session, U.N. Doc.
E/CN.4/RES/2000/37, of April 20, 2000, para. 2.d, and 51ª session, U.N. Doc. E/CN.4/RES/2002/41, of
April 23, 2002, para. 2.d.
154
Cf. Law 18,596 on the recognition and redress to victims of unlawful state action between June
13, 1968 and February 28, 1985, whose Article 9, section G, recognizes "the victim status and
institutional responsibility of the [State] for having affected the human dignity of those who had [...]
[been] born during the imprisonment of his or her mother, or who children who have been disappeared,"
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