34
B.1
Arguments of the parties and of the Commission
98.
The Commission argued that, taking into account that all the alleged victims were children at
the time of their forced disappearance, it is pertinent to analyze the obligations derived from Article
17 of the Convention, interpreted jointly with Article 19 thereof. In this regard, it argued that, based
on an interpretation of the American Convention in light of the corpus iuris on the rights of the child,
even in an exceptional situation, the State through its agents, must protect the institution of the
family as an essential mechanism for safeguarding the rights of the children under its jurisdiction. In
the event that a child is separated from his or her immediate family, the State must work to preserve
that bond by temporarily intervening and directing its actions toward reincorporating that child back
into his or her family and community, provided that this is not contrary to the child’s best interest.
99.
In the instant case, the Commission held that the Salvadoran State itself, through its armed
forces, caused the separation of the alleged victims from their original families through their enforced
disappearance. Similarly, it affirmed that the soldiers that appropriated the children who are the
presumed victims in this case, did not try to establish their identity to facilitate family reunification,
but on the contrary, sought to separate them from their families of origin, as part of an official strategy
known as “draining the water from the fish,” which involved attacking mainly rural populations in
areas considered to be guerrilla strongholds. Furthermore, it alleged that this violation continues
today, since no adequate and effective steps have been taken to conduct a serious search for the
alleged victims and to determine their fate or whereabouts. The Commission considers that, for more
than three decades, this omission has impeded the re-establishment of family ties and, consequently,
prevented the alleged victims from recovering their identity.
100. The Commission emphasized the inherent relationship between the right to a family and the
right to identity, which are particularly affected in cases of forced disappearance of children. The
Commission held that the breakup of the family structure and the separation of children from their
families, not only leaves children in a state of absolute vulnerability, but also implies “a loss of identity,
in many cases irreversible.” Likewise, the Commission emphasized that the impact of family
disintegration not only affects the individual and family contexts, but also the social context with intergenerational effects. For this reason, it stressed the importance that the Court establish these distinct
effects in cases involving the disappearance of children “which include the dismemberment of the
family unit and have a significant and undeniable social impact given the massive and widespread
nature of these violations.”
101. In brief, the Commission concluded that the State of El Salvador failed to fulfil its obligations
under Article 19 of the American Convention, in relation to Article 1(1) thereof, to the detriment of
José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio
Bonilla and Ricardo Abarca Ayala. Likewise, the Commission concluded that the State failed to
discharge its obligation to protect the family enshrined in Article 17 of the American Convention, in
relation to the obligations established in Article 1(1) thereof, to the detriment of José Adrián Rochac
Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo
Abarca Ayala, and of the next of kin identified.
102. The representatives argued that, at the time of their disappearance, the children were entitled
to special protection under Article 19 of the American Convention, and that the State had an obligation
to respect their right to be with their families, avoiding any actions that could affect the family’s
stability to the detriment of the children, as vulnerable minors. The representatives added that the
forced separation of children from their families implies a rupture in their emotional relationships, in
their safeguarding and personal care. They alleged that the State had not assumed “responsibility for
healing these traumas, something that would only be possible by recognizing that the private pain of
the families in question has its origin in structural, historical and political causes that compromise the
State itself, not only for not having addressed them but also by having committed them.” Likewise,