A/HRC/39/46
54.
With this in mind, the Working Group decided to address the issue of standards and
public policies for an effective investigation of enforced disappearances. In the present
report, the Working Group outlines the main elements around this issue, with the aim of
studying them further over the course of the next reporting cycle. The Working Group will
hold an expert consultation and is open to receive inputs on the issue from States, families
of the disappeared, civil society, United Nations mechanisms or agencies and other
interested stakeholders.
2.
Existing standards
55.
The study will compile, in accordance with international human rights law, in
particular the Declaration and the Convention, which rights and State obligations arise from
the duty to investigate. Many of these rights and obligations stem from the three
international human rights instruments on enforced disappearances, 25 while others derive
from provisions contained in other human rights treaties, 26 customary law, soft law or
national or international court decisions.
56.
The obligation to investigate with due diligence was originally included in the first
judgment of the Inter-American Court of Human Rights in the Velásquez Rodríguez case27
and later developed in multiple court judgments. The first set of Court judgments dealt with
the complete lack of national investigations in many Latin American countries, which had
faced dictatorships from the 1960s to the 1980s. Habeas corpus proceedings were usually
futile, judiciaries commonly lacked impartiality and the systems for criminal investigation
and prosecution were not prepared to deal with crimes committed or sponsored by States.
57.
This is why international human rights mechanisms, triggered by the litigation
initiated by the families of the disappeared, had to decide on cases of enforced
disappearances that had begun a long time before. Many local cases were closed as a result
of statutes of limitations; many others were dropped with the justification that, in the
absence of a body, there was no criminal responsibility; but most of the investigations were
halted in the context of amnesty laws or were ineffectively carried out by military
jurisdictions. In addition to total impunity, searches were not carried out for the victims, as
they were only conceived as being necessary as part of a criminal investigation. Such
circumstances also occurred in other regions in which enforced disappearances were and
are still being committed, as the Working Group has been documenting since 1980.
58.
The reaction from international human rights bodies was the development of
jurisprudence based on existing human rights treaties and specific instruments focusing on
enforced disappearances, notably the Declaration, the Convention and the Inter-American
Convention on Forced Disappearance of Persons, in which many of the standards related to
the duty to investigate were developed and later enriched by the human rights mechanisms
mandated to monitor and enforce them.
59.
Article 18 of the Declaration prohibits amnesties or similar measures that might
benefit persons who have or are alleged to have committed enforced disappearances. 28 The
same article limits the right to pardon, taking into consideration the extreme seriousness of
acts of enforced disappearance.29
25
26
27
28
29
8
The Declaration, the Convention and the Inter-American Convention on Forced Disappearance of
Persons.
International Covenant on Civil and Political Rights, the Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention on Human Rights), the American
Convention on Human Rights and the African Charter on Human and Peoples’ Rights.
Inter-American Court of Human Rights, “Velásquez Rodríguez v. Honduras”, judgment of 29 July
1988, para. 177.
Nine years later, on 14 March 2001, in the case Barrios Altos v. Peru, the Inter-American Court of
Human Rights established that amnesties in cases of grave violations of human rights, such as
enforced disappearances, were against the American Convention on Human Rights.
See also the Working Group’s general comment on article 17 of the Declaration (see E/CN.4/2001/68,
paras. 25–32).
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