A/HRC/13/31
645. The Working Group continues to express its concern over the growing number of
cases of enforced disappearances around the world.
646. The Working Group continues to be concerned about measures being taken while
addressing terrorism and its implications for enforced disappearances. These include the
enactment of legislation that restricts personal freedoms and weakens due process, random
arrests committed during military operations, arbitrary detentions and extraordinary
renditions, which amount to enforced disappearances. The Working Group calls upon
States to take legislative, judicial and administrative or other measures to deal with this
issue. The Working Group would like to reiterate its general comment on article 10 of the
Declaration which states that “under no circumstances, including states of war or public
emergency, can any State interests be invoked to justify or legitimize secret centres or
places of detention which, by definition, would violate the Declaration, without exception”.
647. The Working Group is concerned that in many instances the military forces are
allegedly responsible for many cases of enforced disappearance.
648. The Working Group reminds States that enforced disappearance is a continuing
offence and a continuous human rights violation for as long as the fate or whereabouts of
the victim remains unclarified. States therefore should bear this in mind when enacting
statutes of limitation.
649. The Working Group calls upon States to take specific legislative, administrative,
judicial or other measures to prevent and eradicate enforced disappearances. States should
also take specific measures under their criminal law to define enforced disappearances as an
autonomous criminal offence and to bring their existing legislation in line with the
Declaration.
650. The Working Group notes that in certain parts of the world impunity for enforced
disappearance remains a problem. For this reason, the Working Group reminds States of
their obligations under the Declaration to prevent impunity by taking lawful and
appropriate steps to bring to justice those alleged to have committed enforced
disappearances. The Working Group calls upon States to prosecute individuals who have
committed enforced disappearances by competent ordinary courts at all stages of the legal
process.
651. In the general comment that it adopted this year, the Working Group recognized
“that the definition given by Article 7(1) of the Statute of the International Criminal Court
now reflects customary international law and can thus be used to interpret and apply the
provisions of the Declaration”. It calls on States, competent international organizations and
tribunals to fully acknowledge this conclusion and draw all the legal consequences flowing
from it.
652. The Working Group would like to emphasize the right to truth, which should be
enjoyed by all victims of enforced disappearance. The Working Group recommends that
States adopt measures to promote truth and reconciliation in their societies, as a means of
implementing the right to truth and the right to integral reparation of victims of enforced
disappearances. Based on its experience, the Working Group acknowledges that such
processes are often crucial to prevent repetition of enforced disappearances and to clarify
cases, by uncovering the truth of the fate or the whereabouts of disappeared persons.
However, the Working Group underlines that reconciliation between the State and the
victims of enforced disappearance cannot happen without the clarification of each
individual case. The Working Group also stresses that measures taken to promote
reconciliation should not be used as a substitute for bringing perpetrators to justice, in
accordance with the principles provided for in the general comment on article 18.
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GE.09-17704
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