27
148.
The subject of disappearance of children amid climates of violence both in dictatorships
and in armed conflicts, and how that relates to the concept of forced disappearance, has been addressed
by the international community
149.
In the course of its functions in the individual petitions system, the Inter-American
Commission examined the case of the Serrano-Cruz sisters v. El Salvador, which concerns the
disappearance of two girls, also in the framework of the internal armed conflict and in circumstances
similar to those alleged in the instant case. The Commission concluded in that case that the SerranoCruz sisters had been victims of forced disappearance and, consequently, found that the State was
responsible for a series of violations of the American Convention. In its application to the Inter-American
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Court, the Commission submitted that what happened to the victims constituted forced disappearance .
This conclusion is consistent with the development of the subject in international human rights law.
150.
Article 20 of the United Nations Declaration on the Protection of all Persons from
Enforced Disappearance provides:
1.
States shall prevent and suppress the abduction of children of parents subjected to
enforced disappearance and of children born during their mother's enforced
disappearance, and shall devote their efforts to the search for and identification of such
children and to the restitution of the children to their families of origin.
2.
Considering the need to protect the best interests of children referred to in the preceding
paragraph, there shall be an opportunity, in States which recognize a system of adoption,
for a review of the adoption of such children and, in particular, for annulment of any
adoption which originated in enforced disappearance. Such adoption should, however,
continue to be in force if consent is given, at the time of the review, by the child's closest
relatives.
3.
The abduction of children of parents subjected to enforced disappearance or of children
born during their mother's enforced disappearance, and the act of altering or suppressing
documents attesting to their true identity, shall constitute an extremely serious offence,
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which shall be punished as such .
151.
In more categorical terms, the International Convention for the Protection of all Persons
from Forced Disappearance, sets out at Article 25(1) the duty of states parties to take the necessary
measures to prevent and punish under their 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:
b)
The falsification, concealment or destruction of documents attesting to the true identity of
the children referred to in subparagraph ( a ) above.
152.
Paragraphs (2), (3), and (4) of this Article, provide that:
Each State Party shall take the necessary measures to search for and identify the children referred
to in paragraph 1 ( a ) of this article and to return them to their families of origin, in accordance with
legal procedures and applicable international agreements.
States Parties shall assist one another in searching for, identifying and locating the children
referred to in paragraph 1 ( a ) of this article.
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132
IACHR. Application to the Inter-American Court of Human Rights. Case of the Serrano Cruz Sisters. par. 15.
United Nations Declaration on the Protection of all Persons from Enforced Disappearance. Adopted by General
Assembly resolution 47/133 of 18 December 1992