Editing Enforced disappearance (section)

== History of the legal development and international jurisprudence ==

=== General background ===
The crime of forced disappearance begins with the history of the rights stated in the [[Declaration of the Rights of Man and of the Citizen]], formulated on August 26, 1789, in France by the authorities that emerged from the [[French Revolution]], where it was already stated in Articles 7 and 12:

<blockquote>Art. 7. No person may be charged, detained, or imprisoned except in cases determined by the law and in the manner prescribed therein. Those requesting, facilitating, executing, or executing arbitrary orders must be punished...  
Art. 12. The guarantee of the rights of man and of the citizen needs a public force. This force is therefore instituted for the benefit of all, and not for the particular utility of those who are in charge of it.</blockquote>

Throughout the nineteenth century, along with the technological advancements applied to wars that led to increased mortality among combatants and damage to civilian populations, movements for humanitarian awareness in Western societies resulted in the founding of the first humanitarian organizations known as the [[Red Cross]] in 1859, and the first international typification of abuses and crimes<ref>United Nations Commission on Human Rights, E / CN.4 / 2002/71, 8 January 2002</ref> in the form of the 1864 Geneva Convention. In 1946, after the [[Second World War Hangar No. 7|Second World War]], the [[Nuremberg trials]] brought to public attention to the ''[[Nacht und Nebel]]'' decree, one of the most prominent antecedents of the crime of enforced disappearance. The trials included the testimony of 20 of those persons considered a threat to the security of [[Nazi Germany]] and whom the regime detained and condemned to death in the occupied territories of Europe. However, the executions were not carried out immediately; at one time, the people were deported to Germany and imprisoned at locations such as the [[Natzweiler-Struthof concentration camp]], where they ended up disappearing and no information about their whereabouts and fate was given as per point III of the decree:<blockquote>III. …In case German or foreign authorities inquire about such prisoners, they are to be told that they were arrested, but that the proceedings do not allow any further information.<ref>Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression, 8 vols. and 2 suppl. vols.VII, 873–874 (Doc. No. L-90) Washington, DC: Government Printing Office, 1946–1948.</ref></blockquote>

German Field Marshal [[Wilhelm Keitel]] was condemned in connection with his role in the application of the "NN decree" by Adolf Hitler, although, as it had not been accepted at the time that enforced disappearances were crimes against humanity, the International Criminal Tribunal in Nuremberg found him guilty of war crimes.<ref>E/CN.4/2002/71-page 37
</ref>

Since 1974, the [[Inter-American Commission on Human Rights]] and the [[United Nations Commission on Human Rights]] have been the first international human rights bodies to react to the phenomenon of disappearances, following complaints made in connection with the [[1973 Chilean coup d'état|Chilean military coup of September 11]], 1973.<ref>Annual Report of the Inter-American Commission on Human Rights, 1974 OEA / Ser.L / V / II.34, Doc.31, Rev.1, of 30 December 1974</ref> The report of the Working Group to Investigate the Situation of Human Rights in that country, which was submitted to the United Nations Commission on February 4, 1976, illustrated such a case for the first time, when [[:es:Alfonso Chanfreau|Alfonso Chanfreau]], of French origin, was arrested in July 1974 at his home in Santiago de Chile.

Earlier, in February 1975, the UN Commission on Human Rights had used the terms "persons unaccounted for" or "persons whose disappearance was not justified," in a resolution that dealt with the disappearances in Cyprus as a result of the armed conflict that resulted in the division of the island,<ref>Resolution 4 (XXXI) of the Commission on Human Rights of 13 February 1975</ref> as part of the two General Assembly resolutions adopted in December 1975 with respect to Cyprus and Chile.<ref>General Assembly resolution 3450 (XXX) of 9 December 1975. General Assembly resolution 3448 (XXX) of 9 December 1975.</ref>

=== 1977 and 1979 resolutions ===
In 1977, the [[General Assembly of the United Nations]] again discussed disappearances in its resolution 32/118.<ref>"the Assembly expresses&nbsp;... its special concern and indignation at the incessant disappearance of persons who, according to available evidence, can be attributed to political reasons and to the refusal of the Chilean authorities to accept their responsibility for a large number of Persons under such conditions or to explain it, or even to conduct an adequate investigation of the cases that have been brought to their attention." General Assembly resolution 32/118 of 16 December 1977, para. 2.</ref> By then, the Nobel Prize winner [[Adolfo Pérez Esquivel]] had made an international appeal that, with the support of the French government,<ref>Eduardo Febbro, [http://www.pagina12.com.ar/diario/elpais/subnotas/68730-22331-2006-06-20.html ''Una iniciativa de Argentina y de Francia con historia accidentada''] {{Webarchive|url=https://web.archive.org/web/20180708220744/https://www.pagina12.com.ar/diario/elpais/subnotas/68730-22331-2006-06-20.html |date=8 July 2018 }}. ''[[El País]]'', 20 June 2006</ref> obtained the response of the General Assembly in the form of resolution 33/173 of 20 December 1978, which specifically referred to "missing persons" and requested the Commission on Human Rights to make appropriate recommendations.

On 6 March 1979, the Commission authorized the appointment as experts of Dr. [[Felix Ermacora]] and Waleed M. Sadi, who later resigned due to political pressure,<ref>E/CN.4/2002/71-page 10</ref> to study the question of the fate of disappearances in [[Chile]], issuing a report to the General Assembly on 21 November 1979. Felix Ermacora's report became a reference point on the legal issue of crime by including a series of conclusions and recommendations which were later collected by international organizations and bodies.<ref>A / 34/583 / Add.1 21 November 1979</ref>

Meanwhile, during the same year, the General Assembly of the [[Organization of American States]] adopted a resolution on Chile on 31 October, in which it declared that the practice of disappearances was "an affront to the conscience of the hemisphere",<ref>OEA AG/Rev.443 (IX-0/79), para. 3</ref> after having sent in September a mission of the Inter-American Commission to [[Argentina]], which confirmed the systematic practice of enforced disappearances by successive military juntas. Despite the exhortations of non-governmental organizations and family organizations of the victims, in the same resolution of 31 October 1979, the General Assembly of the OAS issued a statement, after receiving pressure from the Argentine government, in which only the states in which persons had disappeared were urged to refrain from enacting or enforcing laws that might hinder the investigation of such disappearances.<ref>OEA, AG/Res. 443 (IX-0/79), para. 5</ref>

Shortly after the report by Félix Ermacora, the [[UN Commission on Human Rights]] considered one of the proposals made and decided on 29 February 1980 to set up the Working Group on Enforced or Involuntary Disappearances, the first of the so-called thematic mechanisms of the commission and the most important body of the United Nations that has since been dealing with the problem of disappearances in cases that can be attributed to governments, as well as issuing recommendations to the commission and governments on the improvement of the protection afforded to miss persons and their families and to prevent cases of enforced disappearance. Since then, different causes began to be developed in various international legal bodies, whose sentences served to establish a specific jurisprudence on enforced disappearance.

=== 1983 OAS resolution and first convictions ===
The [[United Nations Human Rights Committee]], established in 1977 in accordance with article 28 of the International Covenant on Civil and Political Rights to monitor compliance by states parties with their obligations, issued in March 1982 and July 1983, two sentences condemning the State of [[Uruguay]] for the cases of Eduardo Bleier,<ref>Bleier v. Uruguay, communication Nº 30/1978</ref> a former member of the Communist Party of Uruguay, residing in Hungary and Israel, disappeared after his arrest in 1975 in [[Montevideo]], and Elena Quinteros Almeida, missing since her arrest at the Venezuelan Embassy in Montevideo in June 1976, in an incident that led to the suspension of diplomatic relations between the two countries. In its judgments, the Committee relied on a number of articles of the International Covenant, in particular, those relating to "the right to liberty and personal security", "the right of detainees to be treated humanely and with respect to the inherent dignity of the human being" and "the right of every human being to the recognition of his juridical personality", while in the case of Quinteros, it was solved for the first time in favor of the relatives considered equally victims.

In 1983, the [[Organization of American States]] (OAS) declared by its resolution 666 XIII-0/83 that any enforced disappearance should be described as a crime against humanity. A few years later, in 1988 and 1989, the [[Inter-American Court of Human Rights]] promulgated the first convictions declaring the State of Honduras guilty of violating its duty to respect and guarantee the rights to life, liberty, and personal integrity of the disappeared [[Velásquez-Rodríguez v. Honduras|Angel Manfredo Velásquez Rodríguez]]. Rodríguez was a Honduran student kidnapped in September 1981 in [[Tegucigalpa]] by heavily armed civilians connected with the Honduran Armed Forces and Saúl Godínez Cruz.<ref>Molina Theissen: Court I.D.H., Case of Velásquez Rodríguez, Judgment of 29 July 1988. Series C No. 4; And, Court I.D.H., Godínez Cruz Case, Judgment of 20 January 1989. Series C No. 5.</ref> Since the express definition of the crime of enforced disappearance had not yet been defined, the Court had to rely on different articles of the [[American Convention on Human Rights]] of 1969. Other rulings issued by the Inter-American Court condemned [[Colombian conflict|Colombia]],<ref>Case of Caballero-Delgado and Santana v. Colombia, complaint No. 10319/1989, judgment of 8 December 1995</ref> [[Guatemala]] (for several cases including the call of the "street children"),<ref>Blake v. Guatemala, complaint No. 11219/1993, judgment of 24 January 1998. Villigran Morales y Alcase v. Guatemala, complaint No. 11383/1994, judgment of 19 November 1999. Bámaca Velásquez v. Guatemala, complaint No. 11129/1993, judgment of 25 November 2000.</ref> [[Peru]],<ref>Durán and Ugarte v. Peru, Complaints Num. 10009 and 10078/1987, judgment of 16 August 2000</ref> and [[Bolivia]].<ref>Trujillo Oroza v. Bolivia, judgment of 26 January 2000</ref>

=== Situation in Europe and resolutions of 1993 and 1995 ===
In Europe, the [[European Court of Human Rights]], established in 1959, in accordance with article 38 of the [[European Convention on Human Rights|European Convention for the Protection of Human Rights]] and Fundamental Freedoms of 1950, became a single permanent and binding court for all the Member States of the Council of Europe. Although the European Convention does not contain any express prohibition of the practice of enforced disappearance, the Court dealt with several cases of disappearance in 1993 in the context of the conflict between the Turkish security forces and members or supporters of the [[Kurdistan Workers' Party|Kurdish Workers Party (PKK)]] from the Kurdish region to the southeast of Turkey.<ref>E / CN.4 / 2002/71 pag. 20–23</ref>

Another body providing the basis for the legal definition of the crime of enforced disappearance was the Human Rights Chamber for [[Bosnia and Herzegovina]], a human rights tribunal established under Annex 6 of the [[Dayton Peace Agreement]] of 14 December 1995 which, although it was declared incompetent by ratione temporis to deal with the majority of the 20,000 cases reported, it issued a number of sentences against the Serbian Republic of Bosnia<ref>Palic v. Republika Srpska, Case No. CH / 99/3196, decision on admissibility and merits, 11 January 2001</ref> and the Republic of Bosnia and Herzegovina,<ref>Unkovic v. The Federation of Bosnia and Herzegovina, Case No. CH / 99/2150, decision on admissibility and merits of 9 November 2001.</ref> which compensated several families of disappeared persons.

=== Towards the 1992 International Convention ===
In parallel with the resolutions of the international organizations, several non-governmental organizations drafted projects for an international convention. In 1981, the ''Institute des droits de l'homme du Barreau de Paris'' (Institute of Human Rights of the Paris Law School) organized a high-level symposium to promote an international convention on disappearances, followed by several draft declarations and conventions proposed by the Argentine League for Human Rights, FEDEFAM at the annual congress of [[Peru]] in 1982 or the ''Colectivo de Abogados José Alvear Restrepo'' from Bogotá in 1988.

In that same year, the French expert in the then [[Sub-Commission on the Promotion and Protection of Human Rights|Sub-commission on Prevention of Discrimination and Protection of Minorities]], Louis Joinet, prepared the draft text to be adopted in 1992 by the General Assembly with the title Declaration on the Protection of All Persons Against enforced disappearances. The definition presented was based on the one traditionally used by the Working Group on Enforced or Involuntary Disappearances. Although the Declaration included as the primary obligation of States to enact specific criminal legislation, unlike the Convention against Torture, the principle of universal jurisdiction was not established nor was it agreed that the provisions of the Declaration and the recommendations of the Working Group were legally binding so that only a few states took concrete steps to comply with them.<ref>Colombia, Guatemala, Paraguay, Perú y Venezuela. E/CN.4/2002/71, page 28</ref>

The United Nations Declaration, despite its shortcomings, served to awaken the regional project for the American continent commissioned by the OAS General Assembly in 1987, which, although drafted by the [[Inter-American Commission on Human Rights]] in 1988, was subjected to lengthy discussions and modifications that resulted in their stagnation. In June 1994, the OAS General Assembly finally approved the Inter-American Convention on the Forced Disappearance of Persons, which would be the first legally binding instrument on the subject, and entered into force on 28 March 1996,<ref>E/CN.4/2002/71-page 28</ref> after its ratification by eight countries: Argentina, Panama, Uruguay, Costa Rica, Paraguay, Venezuela, Bolivia and Guatemala.

In view of the meager success of the United Nations Declaration, a non-binding instrument that could only marginally influence the practice of enforced disappearances, a number of non-governmental organizations and several experts proposed strengthening protection against disappearances, adopting a convention within the framework of the United Nations. This was followed by the deliberations of the 1981 Paris Colloquium submitted by Louis Joinet in the form of a draft subcommittee in August 1988. Several governments, international organizations and non-governmental organizations responded to the invitation of Secretary-General [[Kofi Annan]] to provide comments and observations to the project.<ref>United Nations, E/CN.4/2001/69, 21 December 2000.</ref>

=== The 2006 International Convention ===
On 20 December 2006, the United Nations General Assembly adopted the text of the International Convention on the Forced Disappearance of Persons after more than 25 years of development and was signed in Paris on 6 February 2007<ref>''Le Monde'' 6 February 2007, ''[http://www.lemonde.fr/web/article/0,1-0@2-3220,36-864092,0.html?xtor=RSS-3210 Droits de l'homme : un traité international sur les disparitions forcées] {{Webarchive|url=https://web.archive.org/web/20070208173719/http://www.lemonde.fr/web/article/0,1-0@2-3220,36-864092,0.html?xtor=RSS-3210|date=8 February 2007}}''</ref> at a ceremony to which representatives of the 53 first signatory countries attended and in which 20 of them immediately ratified it. On 19 April 2007, the Commission on Human Rights updated the list of countries that ratified the convention, which included 59 nations.