Chapter 5: Offences Against the Person
123
situation was endemic and an integral part of the South American dictatorships.
Despite their demise, however, by at least the mid-1980s, the problem has not only
persisted, but has spread all over the world. As a result, the UN Human Rights
Commission established in 1980 a Working Group on Enforced or Involuntary
Disappearances. The mandate of the work has been renewed ever since, and its latest
reports clearly manifest an increase in individual communications with only few
cases resolved.
70
Because of its prevalence in South America, the Assembly and
Commission of the Organisation of American States (OAS) have repeatedly referred
to the practice of disappearances since 1978, urging all cases be investigated and the
practice stopped.
71
In the US, in two civil suits tried under the 1789 Aliens Tort Act,
the courts ruled that the prohibition against enforced disappearances had assumed
the status of
jus cogens
.
72
In 1983 the OAS Assembly stated that the practice of enforced disappearances
constitutes a crime against humanity.
73
Without a legal instrument criminalising this
practice, or mentioned as prohibited under a human rights instrument within its
jurisdiction, the Inter-American Court of Human Rights in the
Velasquez Rodriguez
case, although noting that its classification as a crime against humanity may be
possible, held that the disappearance of 150 persons in Honduras between 1981 and
1984, and carried out as part of a systematic practice by that country’s armed forces,
amounted to a violation of three distinct human rights contained in the 1969 Inter-
American Convention on Human Rights.
74
These were: Art 7 (right to personal
liberty); Art 5 (right to humane treatment); Art 4 (right to life).
75
The most
comprehensive international definition of the offence of enforced disappearance is
that contained in the preamble to the UN General Assembly’s 1972 Declaration on
the Protection of All Persons from Enforced Disappearance.
76
Under this instrument,
such illegal disappearances occur when:
Persons are arrested, detained or abducted against their will or otherwise deprived
of their liberty by officials of different branches or levels of government, or by
organised groups, or private individuals acting on behalf of, or with the support,
direct or indirect, consent or acquiescence of the government, followed by a refusal
to disclose the fate or whereabouts of the persons concerned, or a refusal to
acknowledge the deprivation of the liberty, which places such persons outside the
protection of the law.
This definition elaborates with more precision the elements of the offence found in
Arts II and 7(2)(i) of the 1994 Inter-American Convention on the Forced
Disappearance of Persons
77
and the ICC Statute respectively. However, although
the 1994 Convention and the ICC Statute treat this practice as a crime against
70
UN Human Rights Commission Res 2002/41 (23 April 2002).
71
AG Res 443 (IX-0/79) (31 October 1979); Inter-American Commission on Human Rights,
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