61
198. Thus, forced disappearance has the following concurrent and constituent elements: i)
detention; ii) direct intervention of state agents or their acquiescence; and iii) refusal to recognize the
detention or to reveal the fate or whereabouts of the person involved.332. This characterization has
emerged from the context of the Inter-American System of the Inter-American Convention on Forced
Disappearance of Persons (IACFDP), to which the State of Colombia is a party since April 12, 2005.333
Furthermore, various international instruments, as well as case law of international agencies and domestic
courts, agree with the above-mentioned definition.334
199. That is how States have the obligation of not practicing or tolerating, under any
circumstance, the forced disappearance of persons. They must also reasonably prevent the perpetration of
this crime, seriously investigate what has happened in order to identify those responsible and to impose the
relevant sanctions, as well as make sure the victim receives adequate redress.335 These obligations are set
out expressly in articles I.a) and I.b) of the Inter-American Convention on The Forced Disappearance of
Persons.
200. Regarding the rights that were breached, forced disappearance undermines the right to
personal liberty and places victims in a grave situation of risk of suffering irreparable damage to their
rights to personal integrity and to life. The Court has indicated that forced disappearance violates the
right to personal integrity because “[p]rolonged isolation and being held incommunicado constitute, in
themselves, forms of cruel and inhuman treatment.”336 The Court has also indicated that, even if
incidents of torture or killing of the person who is a victim of forced disappearance cannot be proven in
332
I/A Court H.R., Case of Gómez Palomino v. Peru. Merits, Reparations and Costs. Judgment of November 22, 2005.
Series C No. 136, paragraph 97; Case of Ticona Estrada v. Bolivia. Merits, Reparations and Costs. Judgment of November 27,
2008. Series C No. 191, paragraph 55; and Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and
Costs. Judgment of September 22, 2009. Series C No. 202, paragraph 60.
333
Regarding this, it should be mentioned that the Court has contended that the characteristics of forced
disappearance stem from the definition itself in Article III of the Inter-American Convention on the Forced Disappearance of
Persons, the travaux préparatoires for the latter, and its preamble and statutes. See: I/A Court H.R., Case of Radilla Pacheco v.
Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209, paragraph
140, quoting the Annual Report of the Inter-American Commission on Human Rights 1987-1988, Chapter V.II. This crime “is
permanent as it is not perpetrated instantly but permanently and lasts throughout the time that the person continues to be a
disappeared person” (OEA/CP-CAJP, Report of the Chair of the Working Group in Charge of Reviewing the Draft IACFDP, doc.
OEA/Ser.G/CP/CAJP-925/93 rev.1, de 25.01.1994, p. 10).
334
In the context of the Inter-American System, see: I/A Court H.R., Case of Gómez Palomino v. Peru. Merits,
Reparations and Costs. Judgment of November 22, 2005. Series C No. 136, paragraph 97; Case of Ticona Estrada v. Bolivia.
Merits, Reparations and Costs. Judgment of November 27, 2008. Series C No. 191, paragraph 55; and Case of Anzualdo Castro v.
Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of September 22, 2009. Series C No. 202, paragraph 60.
In the context of the European system, see: ECHR Case of Kurt v. Turkey. Application No. 15/1997/799/1002. Judgment of 25
May 1998, paragraphs 124-128; Case of Çakici v. Turkey, Application No. 23657/94. Judgment of 8 July 1999, paragraphs 104106. In the context of domestic courts, see: Case of Marco Antonio Monasterios Pérez, Supreme Court of Justice of the Bolivarian
Republic of Venezuela, judgment of August 10, 2007; Case of desafuero [removal of immunity] of Pinochet, Plenary of the
Supreme Court of Chile, judgment of August 8, 2000; Case of Castillo Páez, Constitutional Court of Peru, judgment of March 18,
2004, among others.
335
I/A Court H.R., Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4,
paragraph 174; Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of September
22, 2009. Series C No. 202, paragraph 62; and Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations
and Costs. Judgment of November 23, 2009. Series C No. 209, paragraph 142.
336
I/A Court H.R., Case of Chaparro Álvarez and Lapo Iñiguez v. Ecuador. Preliminary Objections, Merits, Reparations
and Costs. Judgment of November 21, 2007. Series C No. 170, paragraph 171; and Case of Anzualdo Castro v. Peru. Preliminary
Objection, Merits, Reparations and Costs. Judgment of September 22, 2009. Series C No. 202, paragraph 85.