A/HRC/16/48
3.
Thus, when an enforced disappearance began before the entry into force of an
instrument or before the specific State accepted the jurisdiction of the competent
body, the fact that the disappearance continues after the entry into force or the
acceptance of the jurisdiction gives the institution the competence and jurisdiction to
consider the act of enforced disappearance as a whole, and not only acts or
omissions imputable to the State that followed the entry into force of the relevant
legal instrument or the acceptance of the jurisdiction.
4.
The Working Group considers, for instance, that when a State is recognized
as responsible for having committed an enforced disappearance that began before
the entry into force of the relevant legal instrument and which continued after its
entry into force, the State should be held responsible for all violations that result
from the enforced disappearance, and not only for violations that occurred after the
entry into force of the instrument.
5.
Similarly, in criminal law, the Working Group is of the opinion that one
consequence of the continuing character of enforced disappearance is that it is
possible to convict someone for enforced disappearance on the basis of a legal
instrument that was enacted after the enforced disappearance began, notwithstanding
the fundamental principle of non retroactivity. The crime cannot be separated and
the conviction should cover the enforced disappearance as a whole.
6.
As far as possible, tribunals and other institutions ought to give effect to
enforced disappearance as a continuing crime or human right violation for as long as
all elements of the crime or the violation are not complete.
7.
Where a statute or rule of procedure seems to negatively affect the
continuous violation doctrine, the competent body ought to construe such a
provision as narrowly as possible so that a remedy is provided or persons prosecuted
for the perpetration of the disappearance.
8.
In the same spirit, reservations that exclude the competence of such a body
for acts or omissions that occurred before the entry into force of the relevant legal
instrument or the acceptance of the institution’s competence should be interpreted so
not to create an obstacle to hold a State responsible for an enforced disappearance
that continues after this.”
General comment on the right to the truth in relation to enforced disappearance
Preamble
“The right to the truth – sometimes called the right to know the truth – in
relation to human rights violations is now widely recognized in international law.
This is witnessed by the numerous acknowledgements of its existence as an
autonomous right at the international level, and through State practice at the national
level. The right to the truth is applicable not only to enforced disappearances.
However, this general comment is concerned solely with enforced disappearances in
the context of the Declaration on the Protection of All Persons from Enforced
Disappearance.
At the international level, the right to the truth relating to enforced
disappearances or missing persons is recognized in a number of instruments. Article
32 of Protocol I to the Geneva Conventions establishes “the right of families to
know the fate of their [disappeared] relative”. Article 24 of the 2006 International
Convention for the Protection of All Persons from Enforced Disappearance states:
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