20 March 2007
As a result of the development of international law, especially with respect to the definition of enforced disappearance, the Working Group on Enforced or Involuntary Disappearances, during its 81st session, adopted a General Comment in order to provide a construction of the definition which is most conducive to the protection of all persons from enforced disappearance.
With respect to the perpetrators of the crime, the Working Group reiterates that enforced disappearances are only considered as such when the act in question is perpetrated by state actors or by private individuals or organized groups (e.g. paramilitary groups) acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government.
The general comment also stresses that any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law. Therefore, the Working Group admits cases of enforced disappearance without requiring that the information whereby a case is reported by a source should demonstrate, or even presume, the intention of the perpetrator to place the victim outside the protection of the law.
The Working Group indicates in the general comment that, when the body of a victim of enforced disappearance is found mutilated or with clear signs of having being tortured or with the arms or legs tied, those circumstances clearly show that the detention was not immediately followed by an execution, but that the deprivation of liberty had some duration, even of at least a few hours or days.
Therefore, a detention, followed by an extrajudicial execution, is an enforced disappearance proper, as long as such detention or deprivation of liberty was carried out by governmental agents of whatever branch or level, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the government, and, subsequent to the detention, or even after the execution was carried out, state officials refuse to disclose the fate or whereabouts of the persons concerned or refuse to acknowledge the act having been perpetrated at all.
The Working Group was created by the United Nations Commission on Human Rights in 1980 to assist families in determining the fate and whereabouts of disappeared relatives. The Working Group endeavours to establish a channel of communication between the families and the Governments concerned, to ensure that individual cases are investigated with the objective of clarifying the whereabouts of persons who, having disappeared, are placed outside the protection of the law. In view of the Working Group's humanitarian mandate, clarification occurs when the fate or whereabouts of the disappeared person is clearly established. The Working Group continues to address cases of disappearances until they are resolved.
The Working Group is made up of five independent experts from all regions of the world. The Chairman-Rapporteur is Santiago Corcuera, and the other Expert-Members are J. Bayo Adekanye, Darko Gottlicher, Saied Rajaie Khorasani and Stephen J. Toope (Prof. Toope was not present at the 81st session).
For more information on the Working Group and for the full text of the General Comment, please refer to the web site: http://www.ohchr.org/english/issues/disappear/index.htm