The Rights of the Victims of Enforced Disappearance Do Not Have an Expiration Date

[María Clara Galvis Patiño teaches international human rights law at Universidad Externado de Colombia and United Nations Human Rights System at the Academy on Human Rights and Humanitarian Law at American University in Washington D.C. She was a member of the Committee on enforced disappearances (CED) from 2015 to 2109. Rainer Huhle is a board member of the Nuremberg Human Rights Center (NMRZ). He is a lecturer in the Human Rights Master program at the University of Erlangen-Nürnberg and member of this University’s Center of Human Rights (CHREN). From 2011 – 2019 he was a member of the Committee on Enforced Disappearance (CED).]

In January 2019, the Human Rights Committee (HRC) received a communication from Francisca Alomar Jaume and Bartolomea María Riera Alomar, daughter and granddaughter respectively, of a married couple who were victims of enforced disappearance in August 1936 on the Balearic Islands (Spain). The authors of the communication asked the Committee to request Spain to clarify the fate of their missing relatives. The Committee has not yet declared the admissibility of the case. This article outlines how, in light of international human rights law and according to the ratione temporis competency rules established by the Committee itself, the communication should be declared admissible.

1. The continuous nature of the obligation to search for the disappeared person

The international obligation to search for disappeared persons is of continuous nature; it arises from the moment that there are reasonable grounds to believe that a person has disappeared and ceases when her or his fate and/or whereabouts are established. This principle finds its basis in the continuous nature of (i) the crime of enforced disappearance, (ii) the consequences of enforced disappearances, (iii) the obligation to investigate, try, and punish those responsible and (iv) the autonomous nature of the obligation to search for the disappeared person.

The continuous nature of the crime of enforced disappearance

The International Convention for the Protection of All Persons from Enforced Disappearance  defines enforced disappearance as the deprivation of liberty (by State agents or private individuals acting with their authorization, support or acquiescence) followed by a refusal to acknowledge said deprivation or by concealment of the fate or whereabouts of the disappeared person (Art. 2). It follows that as long as there is “concealment of the fate or whereabouts of the disappeared person,” an enforced disappearance is being committed. Although it may seem obvious, it should be said that the only way to establish the whereabouts or fate of disappeared persons is by looking for them. To find, one must search. In this regard, the Convention establishes that State parties shall take “all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains.” (art. 24.3).

The continuous nature of the consequences of enforced disappearances

A consequence of the continuous nature of the crime of enforced disappearance is the permanent suffering of the relatives of the disappeared person resulting from the continued absence of a loved one. If the origin of the permanent suffering is the crime of enforced disappearance -which has a continuing character- the violation of multiple rights of the relatives caused by the disappearance implies that the responsibility of the State remains in force as long as this situation continues. The fulfilment of the obligation to search for the disappeared person is an effective way of ending the enforced disappearance and the suffering of their relatives.

The continuous nature of the obligation to investigate, prosecute and punish those responsible

The International Convention establishes the continuous nature of the obligation to investigate, prosecute and punish, by providing that the statute of limitation for criminal proceedings set by domestic law must take into account “its continuous nature” (Art. 8). If the knowledge of who the perpetrator was, and where the disappeared person is, are both duties derived from the same unlawful conduct, the obligation to address both these issues is also continuous in nature. Otherwise, the continuous nature of the enforced disappearance would be fundamentally altered and the obligation to search would be undermined.

The autonomous nature of the obligation to search for the disappeared person

The autonomous nature of the search for disappeared persons is present in the International Convention as a State obligation independent of the obligation to investigate, prosecute, and punish the perpetrators of the crime. The obligation to search and locate is translated into specific obligations, depending on whether the person is found alive, with another identity, or deceased. The specificity of the obligations associated with each of these situations (locate and release, in the first case; identify and return the identity, in the second case; and exhume, identify, respect and restore his or her remains in the third case), reflects the autonomy of the search as a State duty.

The continuous nature of the obligation to search for disappeared persons was reaffirmed in the Guiding Principles on the Search for Disappeared Persons, adopted by the Committee on Enforced Disappearances (CED) in April, 2019. Principle 7 establishes that the search is a permanent obligation that “should continue until his or her fate and/or whereabouts have been determined with certainty”. In light of Art. 30 of the Convention, this principle addresses situations in which the person is found either alive or dead, and reflects the continuous nature of the search by highlighting that the search comes to an end only once the person, if found alive, is again under the protection of the law, or if found dead, is fully identified and his or her family members receive the remains with dignity.

In synthesis, from the continuous nature of the crime of enforced disappearance, as described in the International Convention, arises the continuous nature of the obligation to search for the disappeared person, which is autonomous and independent from – though complementary to – the obligation to investigate, prosecute, and punish those responsible.

• From the continuing character of the enforced disappearance derives the international responsibility of the State, without time limitations, for the enforced disappearances committed under its jurisdiction

Due to the continuous nature of the crime of enforced disappearance, and its permanent consequences for the suffering of relatives and for the multiple violations of their rights, the international obligation of states to investigate and search as laid down by international monitoring bodies are also of a permanent nature. This, regardless of whether the disappearance began before the entry into force of the treaty and the acceptance of the competence of the treaty body. This has been the understanding of several treaty bodies and of the Inter-American Court of Human Rights.

In fact, the HRC has maintained its competence to consider cases that began before the acceptance of competence by the State, and which continued to be committed after the entry into force of the Covenant and the acceptance of the Committee’s competence to consider individual communications. For example, in the decision of 5 September 2017 regarding the communication by Andrei Sviridov against Kazakhstan, the HRC highlighted “that it is precluded ratione temporis from examining alleged violations of the Covenant which occurred before the entry into force of the Optional Protocol for the State party, unless the violations complained of continue after that date or continue to have effects which in themselves constitute a violation of the Covenant or an affirmation of a prior violation” (p. 9.4). The Committee has applied the same rule in the cases of Anderson v. Australia, Avadanov v. Azerbaijan and Kusherbaev v. Kazakhstan, among others.

On the failure to fulfil the obligation to investigate facts that occurred prior to the entry into force of the Covenant and the Optional Protocol, in the case of Sankara v. Burkina Faso, the HRC considered admissible ratione temporis the part of the communication concerning the “violations resulting from the failure to conduct an inquiry and prosecute the guilty parties” (p.6.3), which affected the authors after the entry into force of the Covenant and the Optional Protocol. The HRC considered that, in accordance with its jurisprudence, it “could not consider violations which occurred before the entry into force of the Optional Protocol for the State party unless those violations continued after the Protocol’s entry into force,” and specified that such a persistent violation “is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations by the State party” (p.6.3).

This recurrent interpretation of the criterion of admissibility ratione temporis of violations originating prior to the entry into force of the Covenant and the Optional Protocol for a State must be understood as firmly established case law by the HRC. Because of the nature of enforced disappearance as a continuing offence, this jurisprudence is particularly applicable in cases of enforced disappearances initiated prior to ratification of the Covenant and acceptance of the Committee’s competence by a State.

In their decision in January 2020, concerning a communication against Russia submitted by relatives of victims of the Katyn massacre, committed in 1940, the Committee, while assessing the circumstances of the case, determined the inadmissibility ratione temporis of the communication. But in the same decision, it reaffirmed once more its ruling on the admissibility of communications based on previous facts when the “alleged violations have continued after that date or continue to have effects which would in themselves constitute a violation of the Covenant or a reaffirmation of a previous violation” (p.6.3).

Other committees, such as the Committee against Torture (CAT) or the Committee on the Rights of Persons with Disabilities (CRPD), have interpreted in a similar manner their competence ratione temporis in cases of continuous violations of rights protected by the respective Convention or Optional Protocol, regardless of the their date of entry into force. For example, in the case of Bacher v. Austria, the CRPD declared the communication admissible in accordance with article 2, paragraph (f), of the Optional Protocol to the Convention on the Rights of Persons with Disabilities, which allows the Committee to deal with facts that occurred prior to the entry into force of the Convention for the State party, provided that those facts “continued after that date” (p.8 .4 y 8.5).

The Inter-American Court of Human Rights has repeatedly upheld its jurisdiction to consider cases of human rights violations that began before the treaty’s entry into force. Recently, in the case of Terrones Silva and others against Peru, it recalled its constant jurisprudence stating: “The Inter-American Convention on Enforced Disappearance of Persons is applicable to those events that constitute violations of a continuous or permanent character, such as the enforced disappearance of people, whose start of the execution took place before the entry into force of the treaty and that persist beyond that date, given that they are still being committed, so it does not infringe on the principle of non-retroactivity. To claim otherwise would be tantamount to depriving the treaty itself of its useful effect and the guarantee of protection it provides, with negative consequences for the alleged victims in the exercise of their right of access to justice” (p. 28).

• The presumption that the disappeared person is dead is incompatible with the continuous nature of enforced disappearances and the obligations arising therefrom

Another consequence of the continuous nature of enforced disappearance is that, for as long as the fate is not known, the person cannot be presumed dead. Enforced disappearances are characterized by uncertainty over the fate of the person. The passing of time cannot turn into a presumption of death.

This is the understanding of the CED when recommending to States that when they adopt provisions regarding the legal situation of disappeared persons in relation to economic matters, family law or property law, the person cannot be presumed dead as long as his or her fate has not been established, but rather should enshrine the declaration of absence due to enforced disappearance in their legislation (see, amongst others, the Concluding Observations of the CED on the reports submitted on Chile (p.29) and Peru (p.31). The legal situation of absence reflects a reality: The person is absent because she or he was subjected to an enforced disappearance and therefore there is no certainty about his or her death. They cannot be presumed dead either by law or by national or international judges.

In the same sense, Principle 1 of the Guiding Principles declares: “the search should be conducted under the presumption that the disappeared person is alive, regardless of the circumstances of the disappearance, the date on which the disappearance began and when the search is launched.” This principle specifies the continuous nature of enforced disappearance.

Admitting this communication will give the HRC an opportunity to reaffirm its jurisprudence, to reinforce the continuous nature of the crime of enforced disappearance, and to recognize the adverse consequences that the continuation of the crime has on the families of the disappeared persons, regardless of the time that may have passed.