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OEA/Ser.L/V/II.74
doc. 10 rev.1
16 September 1988
Original: Spanish
ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS 1987-1988
AREAS IN
WHICH STEPS NEED TO BE TAKEN TOWARDS FULL OBSERVANCE OF THE HUMAN RIGHTS SET
FORTH IN THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN AND THE
AMERICAN DECLARATION ON HUMAN RIGHTS
In this part of the Annual Report, in which
suggestions are generally made to the supreme organ of the Organization
concerning specific steps towards full observance of human rights, the
Commission will confine itself to carrying out two mandates that it received
from the most recent session of the General Assembly.
In its resolution AG/RES. 890 (XVII-O/87) on the
Annual Report of the Inter-American Commission on Human Rights, the General
Assembly resolved:
10.
To request the Commission to include on its next program of activities a
study on the situation of minors who are the children of disappeared persons and
who have been separated from their parents and are being claimed by members of
their legitimate families.
11.
To invite the member countries to submit to the Inter-American Commission
on Human Rights, by June 30, 1988, observations and comments on its positive
initiative aimed at producing a draft inter-American convention to prevent and
punish forced disappearances, so that the Commission might submit a draft
convention on this subject to the General Assembly at its next regular session.
Accordingly, the Commission hereby presents the
study requested of it on the situation of minors who are the children of
disappeared persons and who have been separated from their parents and are being
claimed by members of their legitimate families.
It is also submitting a draft Inter-American
Convention to Prevent and Punish Forced Disappearances, with its corresponding
statement of reasons for consideration by the General Assembly at the present
session.
I.
I.
A STUDY ABOUT THE SITUATION OF MINOR CHILDREN OF DISAPPEARED
PERSONS WHO
WERE SEPARATED FROM THEIR PARENTS AND WHO ARE
CLAIMED BY MEMBERS OF THEIR
LEGITIMATE FAMILIES
1.
1. Background
The seventeenth regular meeting of the General
Assembly of the OAS, held in Washington in November 1987, resolved unanimously
to ask the Commission for a study about the “situation of minor children of
disappeared persons who were separated from their parents and are claimed by
members of their legitimate families.”
The IACHR welcomes this decision of the General
Assembly to give special attention to the phenomenon, because it is convinced
that an effective way to counter serious violations of human rights is to
publicize them and to make them generally known, even in their most sordid and
heart-rending details. In so doing,
a contribution is made to solving pending situations and to avoid their
repetition in the future.
This present study is the result of the
Commission’s experience, accumulated over several years, predominantly as a
result of receiving communications from relatives of disappeared children and of
attempting to find solutions through inquiries with the respective governments.
It benefits as well from the extraordinary task performed by human rights
organizations in their own countries. Among
the latter, a special reference is made to the association Abuelas de Plaza
de Mayo (Grandmothers of Plaza de Mayo) of Argentina, and to those who
assist it in the scientific and legal fields.
Besides following those endeavors from their inception, the Commission
has had numerous opportunities to hold conversations with leaders and members of
the Abuelas de Plaza de Mayo, and wishes to express its appreciation to that
group for having submitted valuable documentation for the preparation of this
report.
The present work attempts to summarize the problem
as it has come up in the tragic reality of Latin America, particularly in
Argentina which is the country in which the greatest amount of documentation
exists regarding the facts which have motivated this study, as well as to
describe the efforts of groups in civil society, and of governments in bringing
about a remedy. At the same time,
it points out that there is still a lot to be done and tries to outline ways in
which hemispheric solidarity can contribute to these humanitarian objectives.
The Commission, in different reports, both special
and annual, has referred to the serious problem of the forced disappearance of
adults. One of the repercussions of
this practice, at the stage of the abduction that precedes the disappearance as
such, has been the aggression against the families of the principal victims, to
force them into silence or into collaboration and to intimidate them so that
they will pressure the principal victim into self-incrimination or into
providing information about others. In
most cases of disappearances, therefore, children have become the indirect
victims.
The focus of this study, however, is a narrower
situation, in which children are direct victims and specific “targets” of
the repressive action, even though their kidnapping and theft is meant primarily
to punish their parents or grandparents. This
is the case when minors and infants are kidnapped with their parents, or they
are born during the captivity of their mothers.
Even if the phenomenon sounds cruel and heartless, the Commission must
note that hundreds of such cases have been brought to its attention.
Cases known to the Commission have taken place
mostly in Argentina, during the counter-insurgency campaign called the “dirty
war,” under the military dictatorship that ruled that country between 1976 and
1983. Some of the cases affected
Uruguayan children during their parents’ exile in Argentina.
In those cases, responsibility lies not only with the Argentine
authorities of the time, but also with their Uruguayan counterparts, since there
is evidence of the participation of Uruguayan security agents in the pattern of
forced disappearance of their countrymen in Argentina.
In some cases, the kidnapping of minors was done with the complicity of
security forces of more than one country, either in the clandestine
transportation of the minor across borders, or in the irregular and unlawful
protection afforded in other countries to those who took the children away in
order to evade justice.
In some of the cases reviewed by the Commission,
the final fate of the disappeared children has been the same as in the
overwhelming majority of disappeared adults: their extrajudicial execution and
the attempt to hide their remains. Fortunately,
the number is relatively low.
In other cases, the minor has been returned to the
natural family, often after being held for several days in clandestine detention
centers or in orphanages or hospitals for abandoned infants.
Many of these families have had to endure offensive treatment, long waits
and uncertainty before they were reunited with the disappeared minors.
In a very high number of cases, the children were
taken away their parents to be given in irregular adoption to other families.
The Abuelas de Plaza de Mayo have been able to document in Argentina 208
cases of this kind, though they believe there may be many more that have not
come to their attention for a variety of reasons.
Besides, the National Commission on Disappearance of Persons (CONADEP) of
Argentina has received documentation about 43 other similar cases, none of them
included in the Abuelas de Plaza de Mayo list.
The cases of irregular adoption following
disappearance must be classified in two categories: those in which the family receiving the child does not know
the circumstances that preceded their encounter with him, and those in which the
adopting family is the family of one of the captors of the natural parents, or
of a member of the police or armed forces who is cognizant of the origin of the
child.
In the first case, the family may not necessarily
be innocent of the irregular adoption, made in violation of adoption laws and
regulations, but they believe the child to have been abandoned by the parents
after an unwanted pregnancy. Unfortunately,
this illegal trade in newborns is very common in our countries, even in
transnational irregular adoptions, and societies have developed a certain
indifference to its illegality. The fact that that indifference, or rather deliberate
ignorance has provided a favorable setting for the theft of children whose
parents never abandoned them, must cause us to reflect on the need to promote
greater respect for regular adoption procedures, and to their adjustment, if
necessary, to the needs of life in our time.
The cases in which the new parents are themselves
the captors, torturers and executioners of the natural parents, or their
immediate accomplices, constitute on the other hand, one of the most unusual
manifestations of a repressive pathology.
One of the purposes of this deliberate policy is,
without a doubt, trafficking in irregular adoptions by taking advantage of the
impunity created by the very method of forced disappearance of persons.
From the point of view of those who devised and implemented the policy,
however, there was also a more profoundly ideological–as well as a more
dangerous–motivation. General Ramón Juan Alberto Camps, Chief of Police of the
Province of Buenos Aires between 1976 and 1978, has explained that the leaders
of the “dirty war” were afraid that the children of the disappeared would
grow up hating the Argentine Army because of the fate of their parents.
The anguish generated in the rest of the surviving family because of the
absence of the disappeared would develop, after a few years, into a new
generation of subversive or potentially subversive elements, thereby not
permitting an effective end to the “dirty war.”
2.
Situations presented
For the purposes of illustration, in the following
pages the Commission will describe some of the cases that have come to its
attention.
a.
Cases resulting in the murder of a minor
Floreal Avellaneda, 14 years old, son of a
Communist trade union leader of Greater Buenos Aires, was kidnapped from his
house with his mother on April 15, 1976, by an Army contingent looking for his
father. His mother was held in a
clandestine center and later in an official prison. On May 14, 1976, Floreal’s corpse was found on the coast of
Montevideo, Uruguay, hands and feet bound and with signs of torture.
The Launce family, consisting of the couple and
three young children, were arrested in their house in San Isidro, a suburb of
Buenos Aires, in September 1976. Their
whereabouts were never ascertained. In
January of 1984, a judicial inquiry led to the exhumation of corpses buried in
graves marked “N.N.” (no name) in the cemetery of Bologna, Province of
Buenos Aires. The proceedings
resulted in the identification of the remains of the couple and of the infants
Roberto, 6, and Bárbara, 4. All of
them had been killed by gunfire. Although
the death certificates mentioned five corpses, it was also established that the
remains of the youngest Matilde, 6 months old, was not there. Up to now, it has not been possible to find out the fate of
Matilde, though the CONADEP received information to the effect that she had been
illegally adopted by the Navy officer.
In Argentina there were many cases of teenagers of
Floreal Avellaneda’s age, who disappeared after their arrest by security
forces. In particular, high school
students who were politically organized or who got together to promote
school-related demands were targeted for repression.
The best known case is the one known as “The Night of the Pencils,”
referred to in a motion picture of the same name which has been shown with great
success. The lone survivor of the
episode, Pablo Diaz, told CONADEP and later the Court of Appeals in the trial of
the Juntas, of his detention in several concentration camps run by the First
Army Corps, together with several other high school students from La Plata.
In these camps, he saw his friends Víctor Treviño, Claudio de Acha and
María Claudia Falcone, as well as ten other students, all of them arrested for
demanding reduced public transportation fares for students.
His friends were later executed. Pablo
Díaz, who was then 17, witnessed the rape of María Claudia Falcone, who was
then his same age.
b.
Children returned to their natural families
The Commission is aware of some cases in which the
relatives of the disappeared were able to find the children and are presently
bringing them up. In some of these
cases, the authorities who arrested the parents took measures to notify the
relatives, even while refusing to provide information about the fate or
whereabouts of the principal victims. In
others, the relatives can only thank the good will displayed by neighbors of the
victims, who took care of the children and set out to find the relatives.
In yet other cases, the families had to suffer through an anguishing
pilgrimage through hospitals, orphanages, police precincts and military
barracks, until they found the children. The
Commission prefers not to mention specific areas in order to protect the privacy
of these families and of the children themselves, bearing in mind that the
Commission believes the situation of these children has been favorable resolved.
c.
Delivery to Third Parties
In those cases where the adoptive family is
innocent of the disappearance of the natural parents, the policy of the natural
relatives such as that of the Abuelas de Plaza de Mayo has been to accept the
new family’s custody of the child, provided:
1) that the family environment is appropriate for the child’s welfare;
2) visiting rights are established for the natural grandparents and other
relatives; 3) the child is informed, at an appropriate time, of his or her real
identity. After establishing the
whereabouts and identity of several children, both families have arrived at
mutually satisfactory agreements. Among
these cases it is noteworthy to single out the case of Uruguayan Julien Guisonas
children, whose parents disappeared in a public square in Valparaíso, Chile.
They were adopted by a Chilean family with the subsequent consent of
their natural grandmother.
In some other cases, the adoptive families
themselves have taken the initiative of contracting the natural relatives, in
order to facilitate the identification of the minor. However, it has also been the case that the natural
grandparents have had to seek judicial action in suits to establish the familial
relationship.
In October 1987, the Supreme Court of Argentina
ruled on the first of these cases to come before it, and granted custody of
Laura Ernestina Scaccheri to the natural family. Laura has been living with them since March 1986.
Her parents disappeared after their arrest in 1977 and their whereabouts
are still unknown today. In 1985,
the Abuelas de Plaza de Mayo found Laura living with a family that had received
her in July 1977. In March 1986, a
federal court ordered her returned to the blood relatives.
The appropriating family appealed and the Federal Court of Appeals for La
Plata reversed; the blood relatives then filed a constitutional appeal to the
Supreme Court, and the final decision in their favor was issued on October 29,
1987.
Similar cases are now pending before the Argentine
courts. Ximena Vicario, kidnapped
with her parents on February 5, 1977, when she was eight months old, was found
by the Abuelas only in 1983. The
fate of the parents is still unknown, but it has been established that Ximena
was adopted by a laboratory technician employed by the Casa Cuna
(Foundling Hospital) of Buenos Aires. Her
grandmother has initiated legal action to declare the adoption null and void and
to obtain Ximena’s custody. The
case is pending, but in the interim, the court has granted the grandmother
visiting rights.
d.
Delivery of Agents of Repression
The most recent case solved by the Abuelas de la
Plaza de Mayo is that of Maria Victoria Moyano Artigas, who is now 9 years old,
born in the concentration camp known as “Pozo de Banfield” in August 1978.
Police physician, Dr. Jorge Vidal, signed a forged birth certificate,
which allowed the sister-in-law of a police officer to register the girl as her
daughter. After using genetic tests
to establish the identity of the girl beyond doubt, federal judge Juan Ramos
Padilla returned the child to her natural family on December 31, 1987.
Dr. Vidal is under prosecution for forgery of public documents.
In July 1977, Mónica Lemos de Lavalle, who was
then eight months pregnant, was kidnapped by a contingent of the Argentine First
Army Corps with her husband and a daughter, María, who was 14 months old.
Five days later, María was abandoned by her captors near her
grandparent’s house. Years later,
the grandparents learned that Mónica had been held in “Pozo de Banfield.”
In 1985 an investigation was launched against a policewoman who had
worked there in those years and who had a daughter shoe age was very close to
that of the child presumable born during Monica’s captivity.
Genetic tests demonstrated with 99.9% certainty that the child was the
daughter of Mónica Lemos de Lavalle and the sister of María Lavalle Lemos.
The policewoman admitted having served in the San Justo Investigations
Brigade, in the suburbs of Buenos Aires, between January 1976 and March 1978.
CONADEP has a list of 68 disappeared persons who were seen alive in that
clandestine center, five of whom were pregnant women.
The policewoman and her accomplice were convicted in January 1988 and
given a three-year suspended sentence.
Clara Anahí Mariani, granddaughter of the
President of the Abuelas de Plaza de Mayo, was six months old when her parents
and several other adults died while resisting the search of their house in La
Plata in 1976. Witnesses to the
event state that the troops took a baby out of the almost destroyed house.
In one of his many appearances before the press, General Ramón Camps,
who was in charge of the operation, claimed that Mrs. María Chorobik de Mariani
“knew her granddaughter was dead.”
At a later date, however, during the trial against him for his rile in
the crimes committed by the Police of the Province of Buenos Aires and which
resulted in his conviction and a sentence of 25 years in prison, later upheld in
the Supreme Court, Camps instructed his lawyer to tell the Court that the girl
had been found dead and that Camps had asked for instructions from his
commanding officer, then General Suárez Mason, who ordered information about
the case to be withheld from the legitimate family. In 1982, in statements before Judge Adamo, of the Federal
District Court for La Plata, Camps had stated under oath that he knew nothing
about Clara Anahí Mariani.
Many witnesses headed by CONADEP and by Argentine
courts have reported that many pregnant women were kept alive in several
clandestine detention centers, until they gave birth and then they were
separated from their babies. A few
days after delivery, the babies were given over to families close to the
military, and the prisoners, were “transferred,” a euphemism that–as has
been demonstrated–actually meant their extrajudicial execution.
Such is the case of Laura Estela Carlotto, daughter of the Vice President
of the Abuelas de Plaza de Mayo, Estela Barnes de Carlotto.
At one point, General Reynaldo Bignone, who later became President of
Argentina toward the end of the military governments, acknowledged to Laura’s
parents that the woman was alive and promised to give them the baby, which never
happened. During Dr. Alfonsin’s
presidency, the Carlotto family was able to exhume a corpse, and the forensic
examination established without a doubt that the remains belonged to Laura
Estela Carlotto, and that she had given birth shortly before being killed by
fire arms shot at point blank range. Until
now, it has been impossible to determine the whereabouts of the child.
In some cases, the security forces caused the
disappearance and presumable the murder of nurses and midwives who tried to give
information to the relatives after having assisted in deliveries by women who
have been brought to hospitals by their captors. Such is the case of María Luisa Martínez de González and
Genoveva Fratassi, kidnapped in April 1977, who had told the family Silvia
Isabella Valenzi that the girl had had a premature delivery at Iriarte Hospital
in Quilmes. Neither the nurses nor
Ms. Valenzi have ever been found.
e.
Transnational Escape
The cases that have received the most attention in
the Argentine and international press have to do with the participation of
security forces from neighboring countries, either in the original apprehension
or their surrepititious transportation into Argentina, or in guaranteeing
impunity for the abductors of minors who have fled Argentina in order to escape
judicial action in the last few years.
The first case ever identified was that of the
Julien Grisonas children, whose parents were Uruguayan refugees living in
Argentina, to which the Commission has already made reference.
Several years after the arrest and disappearance of their parents, the
children were found in Chile, living with a family that took them when they were
abandoned in a public square in Valparíso.
After the advent of democracy in Argentina, other
similar cases have also been solved. Carla
Rutilo Artés was captured with her mother in Oruro, Bolivia, on April 2, 1976;
both of them were illegally deported to Argentina.
The mother is still disappeared, but the girl was later found in the
hands of Eduardo Alfredo Ruffo, an Argentine civilian intelligence agent who
represented her as his daughter. After
it was established that Ruffo and his wife previously had attempted to adopt
other children, genetic tests determined that the girl was the granddaughter of
Matilde Artés Company. Ruffo went
into hiding with the girl, but he was later arrested in connection with his role
in acts of terrorism and destabilization against the democratic government. The girl is now living with her grandmother.
Two members of the repressive forces fled with
their families to Paraguay to escape legal action. Federal Police Chief (comisario) Samuel Miara is in
possession of the twins Gustavo and Martín Rossetti Ross, born in 1977 during
the clandestine captivity of their mother, who is still listed as disappeared.
The midwife who assisted in the birth was herself targeted for forced
disappearance when she tried to report the birth to the relatives.
The father of the twins, who returned from exile in 1984, initiated legal
action to have them returned. Miara
and his family fled to Paraguay. Officials
of the Paraguayan government prevented extradition, which had already been
ordered.
Army doctor Norberto Bianco and his wife fled to
Paraguay with two children, one of them apparently a boy born during the
captivity of Silvia Quintela Dallasta at the military garrison of Campo de Mayo.
Ms. Quintela is still disappeared. In
this case there is also a request for extradition pending before the Paraguayan
courts. In both cases, the federal
prosecutor (fiscal de estado) has issued opinions advising against
extradition, alleging that Miara and Bianco are politically persecuted.
In December 1987, judge Eladio Duarte Carvallo granted the extradition of
Bianco and his wife; the couple has appealed and the case is still pending.
In regards to the return of the minors, also requested by the Argentine
courts, the case has been transferred to juvenile courts.
Mariana Zaffaroni Islas was one and a half years
old when she disappeared with her parents, Uruguayan exiles, in Florida,
Province of Buenos Aires, on September 27, 1976. In 1983, the Abuelas found Mariana in the hands of an agent
of the State Intelligence Service (SIDE), Miguel Angel Furci, who at the time
was posted to the Presidential Palace. Furci
and his wife had registered the girl as their own, under the name of Daniela
Romina Furci. Judge Daniel Piotti,
of the federal district court of San Isidro, has asked INTERPOL for the arrest
of Furci (also known as Marcelo Arturo Fillol) and of his wife, Adriana González
de Furci. The mother, María Emilia
Islas, was pregnant at the time of her arrest, leading her relatives to believe
that there may be another child of the family in the hands of agents of
repression, although efforts to locate the child have been fruitless.
3.
Violation of fundamental norms of the international law of human
rights
In the opinion of the Commission, the policy of
removing children of disappeared persons is a violation of fundamental norms of
international law.
The practice described above violates the right of
direct victims–in this case the children–to their identity and to their name
(Article 18, American Convention on Human Rights, henceforth “Convention”)
and to be recognized legally as persons (Art. 3, Convention; Art. XVII American
Declaration on the Rights and Duties of Man (henceforth “Declaration”).
Likewise, it violates the right of children and pregnant women to enjoy
special measures of protection, attention and assistance (Art. 19 Convention and
Art. VII Declaration). Furthermore,
these actions constitute an abuse of the international law standards protecting
the family (Arts. 11 and 17 Convention and Arts. V and VI Declaration).
Neither these rights nor those specifically
devoted to the child in other international instruments are subject to
suspension in situations of emergency threatening the independence or security
of the State. (Art. 27 (2),
Convention).
Even assuming hypothetically that a state of
internal war existed (which was not the case in Argentina), such actions would
still violate explicit norms set forth in the so-called “laws of war” or
International Humanitarian Law, as specified in the Geneva Conventions of 1949
and the Additional Protocols to these Conventions of 1977.
These rules establish the right of families to
learn the fate of their relatives (Protocol I of 1977) and the obligation to
identify children separated from their families as a result of war and the
prohibition against altering the personal status of these children (Fourth
Convention of 1949 and Protection of Civilians, Arts. 24, 50, and 136; Protocol
I, Art. 78 paragraph 3).
International Humanitarian Law also includes
numerous and detailed rules regarding family reunification and the right of
children not to be separated from their families, even in internment camps
(Fourth Convention, Arts. 26 and 82; Protocol I, Arts. 74 and 75).
Additional Protocol II of 1977, designed to govern situations of armed
conflict not of an international nature, also sets forth these principles (Art.
4).
In addition to violations of international law,
the acts described also constitute criminal offenses in the domestic law of all
the member states of the Organization of American States. Through the forced disappearance of children and, in some
cases, their irregular delivery to other families, the authors and accomplices
commit the crime of illegal deprivation of freedom, almost always in the
aggravated form because of the public office held by the author, and the
suppression or misrepresentation of civil status.
4.
Efforts undertaken to solve cases of disappeared children and
obstacles encountered
The Abuelas de Plaza de Mayo have gained a high
degree of support in Argentine society, not only because of the instant
solidarity which their cause aroused in the majority of the population, but also
because this association has demonstrated great ability in using legal
mechanisms creatively and in recruiting the active support of different
organizations and social sectors.
The government of Dr. Raúl Alfonsín, for its
part, has shown from the start a disposition to contribute to the investigatory
work of the Abuelas. It has made
available to this association investigatory resources of the federal government
and services provided by the Office of Minors and Families, an agency of the
federal government.
The CONADEP, chaired by writer Ernesto Sabato,
dedicated especial efforts to the topic of disappearances of children, which
were reflected in a special chapter of the Nunca Más report.
It is important to cite certain segments of that report:
When a child is stripped away from his legitimate
family to be inserted in another family environment chosen according to an
ideological conception of what is “convenient to his salvation,” an
invidious usurpation of roles is committed.
The repressors who tore the disappeared children
away from their homes or from their mothers at the time of birth, decided about
the lives of those young beings with the same coldness of one who disposes of
war booty.
The democratic government of Argentina has had
repeated occasions to state its position in favor of the struggle of the Abuelas
to find their missing grandchildren. When
the government submitted a bill to Congress to limit sanctions to be imposed on
military officers for the crimes committed during the “dirty war,” it also
excluded the situation of disappeared minors from the benefits and immunities
created by that legislation.
On May 13, 1987, at the President’s initiative,
Congress enacted a law creating the National Genetic Data Bank, to be organized
in facilities of the Durand Hospital in Buenos Aires. The Bank offers services free of charge to the relatives of
disappeared children or of children born in captivity, for the purpose of
creating an archive and eventually providing expert testimony and reports to
establish the familiar relationships of a child. The law states that refusal to submit oneself to tests and
determine such familiar relations shall constitute evidence to the detriment of
the refusing party in such a lawsuit. The
creation of this archive is the culmination of a successful joint venture
between the most advanced genetic scientists in the world, and the government
and judiciary of Argentina. It
should also be pointed out that under the sponsorship of the American
Association for the Advancement of Science (AAAS) of the United States, American
scientists traveled to Argentina and worked for prolonged periods with their
Argentine colleagues. Through
studies of blood groups, histocompatibility, seric proteins and seric enzymes,
using samples taken not only from grandparents but also from other blood
relatives in any degree, the specialists were in a position to determine the
“index of grandparenthood” of the claimants in a lawsuit to establish
familial relationship with a very high degree of precision.
The Argentine judiciary has used these advanced
scientific procedures to great advantage. After
some initial hesitation, the Abuelas have now accumulated a string of very
significant judicial victories. At
the present time, several federal judges and juvenile court magistrates act with
great speed to solve these cases, as well as to prevent the flight of those who
attempt to escape justice. Civil law judges and juvenile courts have jurisdiction on
lawsuits to establish familial relationships (acciones de filiación),
while criminal law judges, mostly in the federal system, take these cases under
the offenses labeled suppression or misrepresentation of civil status or theft
of minors. All of these judicial
initiatives have been greatly boosted by the decision of the Argentine Supreme
Court of October 29, 1987, in the case of Laura Ernestina Scaccheri, mentioned
above.
The Commission considers it important to quote
certain passages the concurrent opinion of Justice Enrique Petracchi:
That, having examined the evidence, it must be
pointed out that the case of the child Laura fits into the framework of a
practice as extended as it is condemnable: the approximation of children.
Social tolerance toward this practice derives only from the primitive
conception of the child as property and from the ignorance about the trauma that
can be caused on one who should be adopted, by the fraudulent substitution of
his real status and by the hiding of the real situation.
If these attitudes are harmful in the cases of
children whose parents have wanted to get rid of them, they are intolerable
when, like here, they are about a girl whose parents recognized her, who had her
parents taken violently away from her before she was three months old.
In the sad circumstances of 1977, it was
undoubtedly praiseworthy that a neighbor would take care of the girl left behind
by the captors of her “disappeared” parents, but that fact alone could never
authorize the act of appropriation that took place.
That, in this sense, the reconstruction of
identity and position in society (which society owes to Laura) does not seem
compatible with the postponement of her blood family relationships, of the
memory of her parents, of her cultural integration with legitimate relatives.
At the same time, we must consider the right of parents and siblings of
the disappeared to see the continuation of their family in the only child of
those truncated young lives.
The Commission shares the expressions of Justice
Petracchi because they include a fair appreciation of the rights of the
relatives of disappeared persons, but more importantly because they take, as
their point of departure, the rights of the child herself.
Other portions of this decision are also worth reading because they
reflect a modern approach to the need to adjust the letter of the law to the
necessities of life, and because they cite important ideas of experts in child
psychology who provided their scientific findings regarding the effect of this
kind of situation on children.
The Commission must also mention, as a positive
measure, the promulgation in Argentina of Law No. 23.466 of October 30, 1986
which grants a pension to the minor children, below the age of 21 years, whose
parents were victims of forced disappearances.
As mentioned above, the bills introduced by the
Executive Branch in Argentina and adopted by Congress to limit penal actions for
the crimes committed during the military governments excluded the cases of
disappeared children. The final
texts of the laws called Punto Final and Obediencia Debida, as
approved by Congress, specifically excluded the crimes of abduction of minors
and suppression of status. However,
in spite of the extraordinary efforts by CONADEP, by prosecutors and by courts
that intervened in the resounding trials of the last few years, multiple
features of what happened during the “dirty war” are still unknown.
Among the most important aspects that have yet to be disclosed, are the
fate and whereabouts of thousands of disappeared persons and as regards the
reunion of family members with their missing grandchildren achieved, and the
solidarity and acceptance enjoyed by the Abuelas de Plaza de Mayo continues to
grow. The Commission considers it
important to call on all governments and peoples in the region to renew efforts
to assist them in the achievement of their noble objectives.
Until now, 45 children have been located, of whom
22 have been returned to their families, 12 are being shared between natural and
adoptive families, 5 were murdered and 6 are still pending judicial decision.
The total of cases registered and documented by the Abuelas is now 208,
though there may be more. For
instance, another 43 cases are registered in the files of CONADEP, now under the
custody of the Under-Secretariat for Human Rights of the Ministry of the
Interior.
5.
Conclusions and Recommendations
The Commission believes the objectives of the
Abuelas de Plaza de Mayo and of other groups of relatives in other countries who
share their aspirations to be worthy of support. The relatives of children who disappeared or were born in
captivity have to right to insist on knowing the whereabouts of those infants
and to participate in their education and upbringing, in the manner that is most
conducive to the child’s development and welfare.
The children victimized by this policy have a
fundamental right to their identity as persons and to know that identity.
They also have the right to recover the memory of their natural parents,
and to know that those parents never abandoned them.
They have the right to be in contact with their natural family so that
they can nurture and provide continuity to that memory of affection.
The Commission believes that judges must have
discretion to determine an appropriate custody arrangement, and where
applicable, to regularize adoptions if the best familial environment for the
healthy growth of the child is, in fact, the adoptive home.
Even in these cases, however, judges must respect the exercise of the
natural relatives to visitation rights and contacts with the child.
In cases where the abduction was committed by a person who participated
in the forced disappearance of the true parents, or in their torture or
execution, or who became an accomplice to such atrocities, the Commission
believes that the child's mental and physical health demands his immediate
separation from that family group.
In light of the preceding observations, the
Commission considers it necessary to point out and to support the measures
adopted by the democratic government of Argentina as well as the actions taken
by the Abuelas de Plaza de Mayo and similar groups which have attempted to solve
the problem of minor children of disappeared persons who were separated from
their parents and who are claimed by the members of their true families.
At the same time it recommends that other
governments of the OAS offer all forms of scientific, judicial or investigatory
cooperation available to them, to the Argentine Government and to all private
associations interested in the topic.
In addition to the foregoing, and without
prejudice to the specific measures which the Commission will propose in its
draft Inter-American Convention on Forced Disappearance of Persons that is
presently under consideration, the Commission requests that the General Assembly
of the OAS, at its eighteenth regular meeting, recommend that all member states
of the OAS:
a)
An increase in the penalties for the crimes of suppression and
misrepresentation of civil status and abduction of minors, as well as the
creation of a more serious form of the crime when it is committed under the
protection of, or taking advantage of, the forced disappearance of the true
parents;
b)
The review of procedural standards in each of the member states, in order
to facilitate the introduction of scientific evidence to clarify these cases, to
speed up processing of actions to establish familial relationships, and to allow
magistrates to grant injunctive relief to prevent the flight of persons, the
hiding of children or the destruction of evidence; and
c)
The review, and where necessary, the amendment, of substantive and
procedural norms regarding adoption, in order to conform them to contemporary
realities, thereby contributing to their increased observance in all countries.
II. DRAFT INTER-AMERICAN CONVENTION ON
THE
FORCED DISAPPEARANCE OF PERSONS
In its previous Annual Report, the Inter-American
Commission on Human Rights proposed to the General Assembly of the Organization
that it consider the possibility of adopting an Inter-American Convention on
Forced Disappearance of Persons, to prevent and punish that abominable practice.
At that time the Commission noted that on the
basis of experience in recent years it could say that the policy of forced
disappearances had become an important instrument for the repression and
physical suppression of dissidents in many Latin American countries and that the
extreme cruelty of the practice called for the adoption of special measures both
nationally and internationally to help to eliminate that policy for good.
The General Assembly endorsed that proposal and in
operative paragraph 11 of resolution AG/RES. 890 (XVII-O/87) on the Annual
Report of the IACHR agreed:
11.
To invite the member countries to submit to the Inter-American Commission
on Human Rights, by June 30, 1988, observations and comments on its positive
initiative aimed at producing a draft inter-American convention to prevent and
punish forced disappearances, so that the Commission might submit a draft
convention on this subject to the General Assembly at its next regular session.
To comply with the mandate, the Commission first
discussed the matter at its 72nd regular session and has approved the draft
Convention included below in the course of the present session.
In preparing the draft, the Commission first took
into account its previous reports, resolutions, and documents that refer to the
painful issue of forced disappearances. It
is precisely the experience the Commission has acquired in this are and its
recommendations that have been its major source of inspiration in drawing up the
provisions contained in the draft.
In addition, given the experience of
nongovernmental human rights organizations in this regard, the Commission turned
to all those organizations with which it has maintained close ties in recent
years and has shared experience on the topic of forced disappearances to ask
them for their observations and comments. In
response to those requests, the Commission received valuable suggestions from
the “Vicaría de la Solidaridad” of the Archdiocese of Santiago, Chile; the
“Socorro Jurídico Cristiano ‘Arzobispo Oscar Romero’” of El Salvador;
the “Federación Latinoamericana de Asociaciones de Familiares de Detenidos
Desaparecidos,” with headquarters in Caracas, Venezuela; the Executive
Committee of the Coalition of NGOs Concerned with Impunity for Violators of
Human Rights of New York; and the following nongovernmental organizations of
Argentina: "Abuelas de Plaza
de Mayo,” “Centro de Estudios Legales y Sociales (CELS),” “Familiares de
Detenidos y Desaparecidos por Razones Políticos,” and the Grupo de Iniciativa
para una Convención Internacional contra la Desaparición Forzada de
Personas.”
Unfortunately, as of the date of this report, only
the Government of Venezuela has presented its comments and observations to this
draft Convention.
The Commission also took account of United Nations
documents on forced disappearances, as well as related theoretical articles to
which it had access. Also of
special importance was the judgment dated July 29, 1988, of the Inter-American
Court of Human Rights, in which this Court in the decision in the case of Angel
Manfredo Velásquez Rodríguez confirmed the seriousness of this practice,
stating that the phenomenon of disappearances constitutes a complex form of the
violation of human rights which must be comprehended and faced in an integral
manner.
As is customary with such instruments, the draft
the Commission is submitting begins with a preamble setting forth the
considerations that prompted the states that participated in its adoption to
sign the instrument. An important
aspect of the preamble is that it emphasizes that, although the acts included
under forced disappearance constitute both a violation of fundamental rights and
freedoms guaranteed in international instruments and the commission of crimes
previously established in the corresponding national legislations, it is
important to draw up an instrument that will qualify forced disappearance of
persons as a specific and separate crime, establish standards to punish and
prevent it, and regulate its international effects.
Article 1 establishes the general purpose of the
Convention, namely, the obligation of the States Parties to prevent and punish
the forced disappearance of persons and to undertake to join forces to help by
all possible means to eradicate its practice.
Article 2
defines forced disappearance on the basis of the criterion generally accepted by
the bodies that have been concerned with describing the phenomenon.
In the
opinion of the Commission, as pointed out in its earlier report, for there to be
a forced disappearance, there must first have been an abduction or an arbitrary
arrest. The abduction or the arrest
of the person, although usually done in secret, is carried out by government
agents, either uniformed or in civilian clothing, who are members of police
organizations or the armed forces, or by paramilitary forces acting under the
operational control of the police or armed forces.
This is important because such disappearances do not include kidnapping
of a person by common criminals, for example, for ransom.
In some cases, the perpetrators are members of the paramilitary or
parapolice groups. The seriousness
of this type of crime is that the perpetrators enjoy immunity since they are
tolerated by government agencies. In
these cases, for all legal purposes, the perpetrators are acting as agents of
the state, in view of its consent or acquiescence.
The other
essential element necessary to describe this phenomenon is that once the
abduction or detention has occurred and a reasonable amount of time has elapsed,
the government authorities provide no information which allows a determination
of the whereabouts or fate of the abducted or arrested person.
Article 3
is intended to establish the separate nature of the crime of forced
disappearance of persons. Although,
as this article points out, acts comprising forced disappearance are currently
punished under the corresponding national legislations, through the Convention
the States Parties undertake to adopt separate criminal standards that define
forced disappearance, adding that the crimes that are thereby defined will be
considered continuing or permanent as long as the whereabouts or the fate of the
victim has been established.
Article 4
may well be the most important in the entire draft Convention since, in
characterizing forced disappearance of persons as a crime against humanity, it
gives the Convention a specific meaning thus enabling it to be truly effective.
It should also be recalled in this connection that forced disappearance
had already been characterized as a crime against humanity in resolutions
AG/RES. 666 (XIII-O/83) and AG/RES. 742 (XIV-O/84) of the OAS General Assembly.
Article
4, 5, 6, 7, 8, 9, 10, 11 and 12 govern the juridical effects of the
qualification as a crime against humanity by assigning to them the principle of
universal jurisdiction to judge and punish the crime, the obligation to
extradite those responsible for having committed the crime of forced
disappearances, freeing both the criminal process and its sanctions from any
statutes of limitations, and fixing the common nature of the crimes for the
purposes of jurisdiction for prosecution and of extradition and the denial of
political asylum.
In
response to a suggestion made by some nongovernmental human rights
organizations, Article 13 has established a standard that already exists in the
legislation of some countries, such as the United States of America, that may
help to clarify certain situations. According
to the provision, the States Parties may establish extenuating or exculpatory
circumstances for those who, having participated in the disappearance of a
person, help to bring him back alive or voluntarily provide the competent
authority with information that sheds light on a case.
Of course, the Commission has proposed that the direct perpetrators of
acts of torture or homicide within the framework of the forced disappearances
not be allowed to benefit from this provision.
Article
14 enshrines the general principle that the States Parties to the Convention
must undertake to adopt such legislature, administrative, and jurisdictional
measures as necessary to prevent forced disappearances from being practiced in a
State.
The
following articles relate to various specific measures aimed at preventing
forced disappearance of persons. Thus,
on the basis of the experience of countries where forced disappearances occurred
and where judiciary maintained a passive attitude that allowed the practice of
that iniquitous phenomenon, Article 15 proposes that under no circumstances may
there be suspension of the right to petition for habeas corpus or other
comparable judicial writs as a means of establishing the whereabouts of the
detainee and his state of health and of ascertaining the official order whereby
he was arrested. Further it
proposes that, in complying with the writ of habeas corpus or similar
court orders, judicial officials should have free, immediate access to all
detention facilities and each of their establishments as well as to any place in
which it may be assumed that an abducted or detained person might be found,
including places under military jurisdiction.
Article
16 establishes that the States Parties are obliged to maintain public,
centralized records of detainees, to keep such records accurate at all times,
and to make them available to family members, judges, lawyers, and other
authorities.
Article
17 provides that the States Parties must, in their internal legislations,
establish standards that accurately specify the officials authorized to order
arrests and the conditions on which they may do so, as well as to punish any
officials who deceitfully refuse to provide information about a person’s
arrest.
Article
18 makes the United Nations standard minimum rules for the treatment of
prisoners set forth in resolution 663 (XXIV) of the Economic and Social Council,
of July 31, 1957, applicable to the States Parties to the Convention, as an
integral part of their domestic legislation.
This is in response to the fact that the countries in which forced
disappearances have occurred have generally not complied with such minimum rules
for the treatment of prisoners.
Articles
19 and 20 deal with the situation of minors who are the children of disappeared
persons and who have been separated from their parents and are being claimed by
members of their legitimate families. These
provisions propose specific measures on this important topic, to which the
Commission gave full consideration elsewhere in this chapter of the Annual
Report.
Article
21 establishes as a preventive measure the obligation of the States Parties to
allow the International Committee of the Red Cross regular, periodic access to
all international detention facilities in their territory.
Articles
22, 23, and 24 establish the mechanism that will function should a forced
disappearance occur. The Commission
has decided not to propose a mechanism distinct from the existing one, which has
its legal basis in the Convention, and in the Statute and Regulations of the
Commission and, possibly for some States, in instruments, which refer to the
Inter-American Court of Human Rights. The
proposed provisions are intended rather to perfect and strengthen the present
procedures that the Commission has been using in cases of forced disappearance.
It is thus proposed that when the Inter-American Commission on Human
Rights receives a complaint or information within 14 days of occurrence of a
forced disappearance it urgently contact the corresponding government to sent it
the complaint or information it has received and ask it to provide, as soon as
possible, such information as it deems relevant, in particular with regard to
the measures that are being taken to establish the whereabouts of the missing
person.
Should the government’s reply not be
satisfactory, The Commission may request the Inter-American Court of Human
Rights to adopt, pursuant to Article 63, paragraph 2, of the American Convention
on Human Rights such provisional measures as it deems pertinent, especially
those designed to ensure that the government will bring the abducted or detained
person before the competent legal authorities.
For those purposes, the draft proposes that the States Parties to the
Convention that have not yet accepted the compulsory jurisdiction of the
Inter-American Court of Human Rights agree to grant the Court the competence to
adopt the corresponding provisional measures in cases of forced disappearances.
Given the extreme gravity of the practice of
forced disappearances when they stem from a deliberate, systematic policy
adopted by the government of a state and affect a considerable number of people,
Article 25 proposes that under such circumstances that practice should be
considered an urgent problem of general interest to the American states, which
may lead to the convocation of a Meeting of Consultation of Ministers of Foreign
Affairs.
It should be noted that that provision of forced
disappearances when they stem from a deliberate, systematic policy adopted by
the government of a state and affect a considerable number of people, Article 25
proposes that under such circumstances that practice should be considered an
urgent problem of general interest to the American states, which may lead to the
convocation of a Meeting of Consultation of Ministers of Foreign Affairs.
It should be noted that that provision does not
refer to individual cases of forced disappearance–which are covered by the
three preceding articles–but to a general situation characterized by the
following: a) the existence of a
policy, that is, a deliberate and systematic decision, which also implies
application of a method previously agreed on; b) adoption of that decision by the highest authorities of the
State so that the resulting actions may be imputed to the State; and c) the
existence of a significant number of victims of the practice, which excludes
isolated cases of disappearance, although those cases may meet the other
requirements.
To make the application of this article even more
rigorous, it is proposed that there be a specific quorum of the Commission
members to determine that the practice exists in a State.
In accordance with the OAS Charter, the Permanent
Council of the Organization will of course ultimately decide whether a Meeting
of Consultation of Ministers of Foreign Affairs is to convene to consider the
situation of a state in which the practice of forced disappearances constitutes
a deliberate and systematic policy adopted by the government and affecting a
significant number of persons.
Articles 26 to 32 cover the final provisions, as
is customary in this type of Convention. To
facilitate its adoption, the Commission has sought to follow, with a few
changes, the model of the Inter-American Convention to Prevent and Punish
Torture.
Reproduced below is the text of the draft
Convention being proposed by the Inter-American Commission on Human Rights:
DRAFT
INTER-AMERICAN CONVENTION ON THE FORCED
DISAPPEARANCE OF
PERSONS
The American States party to the present
Convention,
Reaffirming their intent to consolidate, in this
hemisphere, within the framework of democratic institutions, a system of
personal freedom and social justice based on respect for the rights of the human
person;
Considering that the forced disappearance of
persons constitutes an extremely serious form of repression, one that violates
basic human rights enshrined in the American Declaration of the Rights and
Duties of Man, the Universal Declaration of Human Rights, the International
Covenant on Political Rights and the American Convention on Human Rights;
Bearing in mind that, while the acts which
comprise the forced disappearance constitute both a violation of fundamental
rights and freedoms guaranteed in the aforementioned international instruments
as well as the commission of crimes set forth in the respective national laws,
it is nonetheless important to devise an instrument which characterizes the
forced disappearance of persons as a specific crime in and of itself, setting
forth norms designed to punish and prevent and regulate its international
effects;
Observing that, because of its inherent cruelty
and contempt for human dignity, the practice of forced disappearance of persons
constitutes a crime against humanity;
Recalling that the General Assembly of the
Organization of American States has declared that the forced disappearance of
persons constitutes a crime against humanity;
Convinced that an inter-American Convention to
prevent and to punish the perpetrators of forced disappearance of persons will
contribute to the elimination of this horrendous crime, and that it will
constitute a decisive advance in the protection of the rights to life, integrity
and personal freedom,
Have agreed to the following:
Article 1
The States Parties commit themselves to prevent
and to punish the perpetrators of forced disappearance of persons, and undertake
to act jointly to contribute by all means within their power to eradicating the
practice of it.
Article 2
For the purposes of this Convention, forced
disappearance is understood to be the abduction or detention of any person by an
agent of a State or by a person acting with the consent or acquiescence of a
State in circumstances where, after a reasonable period of time there has been
made available no information that would permit the determination as of the fate
or whereabouts of the person abducted or detained.
Article 3
Without prejudice to the fact that the component
elements of the crime of forced disappearance may now be punishable under
national laws, the States Parties shall adopt new penal standards sanctioning
the forced disappearance of persons. The
crime resulting therefrom shall be considered continuous or permanent until the
fate or whereabouts of the victim has been ascertained.
Article 4
The forced disappearance of a person is a crime
against humanity. Under the terms
of this Convention, it engages the personal responsibility of its perpetrators
and the responsibility of the State whose authorities executed the disappearance
or consented to it.
Article 5
1.
The acts constituting a forced disappearance shall be considered a crime
in every State Party to this Convention. Consequently,
every State Party shall undertake to establish its jurisdiction over the cause
in the following cases:
a.
When the forced disappearance has occurred within its jurisdiction;
b.
When the alleged perpetrator is a national of that State;
c.
When the alleged perpetrator is found in its territory.
2.
In the event of a conflict of jurisdiction, the criminal procedure and
sentence, as well as possible civil action for compensatory damages against the
perpetrators of forced disappearances, shall take place in the order set forth
in the preceding paragraph.
Article 6
The crime referred to in Article 2 shall be deemed
to be included among the extraditable crimes in every extradition treaty entered
into between States Parties. The
States Parties undertake to include the crime of forced disappearance as an
extraditable offence in every extradition treaty to be concluded between them.
Every State Party that makes extradition
conditional on the existence of a treaty may, if it received a request for
extradition from another State Party with which it has no extradition treaty,
consider this Convention as the legal basis for extradition in respect of the
crime of forced disappearance. Extradition
shall be subject to the other conditions that may be required by the law of the
requested State.
States Parties which do not make extradition
conditional on the existence of a treaty shall recognize such crimes as
extraditable offences between themselves, subject to the conditions required by
the law of the requested State.
Article 7
Penal action arising out of the forced
disappearance of persons, and penalties imposed by the judicial system against
those responsible shall not be subject to a statute of limitations.
Article 8
The perpetrators of forced disappearances shall
not benefit from any legal act adopted by the Executive or Legislative branches
of government that might have the effect of exempting such persons from
punishment.
Article 9
In penal action for the acts mentioned in Article
2, the defense based on obedience to superior orders shall not be admitted.
Article
10
No privileges, special courts, or exclusive
jurisdictions for the trial of the crime of forced disappearance shall be
permitted. Such acts shall not be
considered crimes committed in the course of military duties for the purpose of
determining jurisdiction or the applicability of military penal legislation.
Article
11
The forced disappearance of persons shall be
considered common crimes for purposes of extradition.
Article
12
The States Parties to this Convention undertake
not to grant political asylum to the perpetrators of forced disappearances
regardless of the motives for their actions.
Article
13
Notwithstanding the provisions of the foregoing
articles, the States Parties if necessary, may establish mitigating or
exculpatory circumstances for those who, having taken part in a person’s
disappearance, contribute to bringing that person forward alive or give
voluntary information to the authorities making it possible to solve the case,
unless they themselves committed acts of torture or committed homicide.
Article
14
The States Parties to the Convention shall adopt
any legislative, administrative and jurisdictional measures necessary to prevent
the crime of forced disappearance.
Article
15
Even during a state of emergency or during the
suspension of individual guarantees, the States Parties shall not suspend any
judicial guarantee including habeas corpus as a means of determining the
whereabouts of a detainee, his or her state of health or the warrant form the
authority leading to the arrest. In
such a proceeding, the appropriate officials shall have free and immediate
access to all detention centers and to each part thereof, as well as to any
place in which an abducted or detained person may be presumed to be, including
places subject to military jurisdiction.
Article
16
The States Parties shall establish and maintain
public and centralized registries of all persons detained in all parts of their
national territory, to be updated on a daily basis, and shall make them
available to family members, magistrates, attorneys, and other authorities.
Article
17
The States Parties shall establish standards in
their domestic laws indicating those officials authorized to order arrests or
detentions, the conditions under which they may be ordered, as well as sanctions
for those officials who willfully refuse to provide information on a person’s
arrest or detention.
Article
18
By means of ratification or accession to this
Convention, the States Parties adopt the United Nations Standard Minimum Rules
for the Treatment of Prisoners (Resolution 663 C [XXIV] of the Economic and
Social Council, of July 31, 1957) as an integral part of their domestic law.
Article
19
The States Parties shall combine their efforts to
prevent and sanction the appropriation of children of disappeared parents or
children born during their mother’s clandestine captivity and their release to
other families for irregular adoption. To
that end, they shall punish, in their domestic law, crimes involving the
alteration of, or the suppression of proof, of the civil status of any person
and the abduction of minors.
Article
20
The States Parties shall cooperate in the search
for, identification and ascertainment of the parental relationship of children
who have been removed from the territory where they or their parents disappeared
and to cooperate in returning them to their legitimate families.
Article
21
The States Parties to this Convention shall allow
the International Committee of the Red Cross regular and periodic access to all
centers of confinement and detention.
Article
22
For the purposes of this Convention, the
processing of complaints regarding forced disappearances is subject to the
procedures established in the American Convention on Human Rights and the
Statutes and Regulations of the Inter-American Commission and the Inter-American
Court of Human Rights.
Article
23
Without prejudice to the provisions of the
preceding article, when the Inter-American Commission on Human Rights receives a
complaint or information regarding a forced disappearance, within fourteen days
of the act its Executive Secretariat shall urgently transmit the complaint or
information received to the respective government and shall request that
government to provide any relevant information as soon as possible, especially
with regard to measures being taken to determine the whereabouts of the
disappeared person.
Article
24
1.
If the government’s response to a request in the terms of Article 21,
fails to indicate the whereabouts of the alleged victim, the Commission or if
the IACHR is not in session, the President of the Commission or in the event of
his unavailability, one of the Vice Presidents, through the Executive Secretary,
shall instruct the Executive Secretary to request that the Inter-American Court
of Human Rights adopt such provisional measures as it deems pertinent pursuant
tot he provisions of Article 63.2 of the American Convention on Human Rights,
especially measures designed to lead the government to present the abducted
person or detainee before the competent judicial authorities and to guarantee
the protection of the family of the victim as well as the original complainants.
2.
For purposes of this article, the States Parties to this Convention,
which have not yet recognized the compulsory jurisdiction of the Inter-American
Court of Human Rights, agree to grant the Court competence, in cases of forced
disappearance, in order to enable it to adopt the provisional measures referred
to in the foregoing paragraph.
Article
25
1.
The practice of forced disappearances in a member state of the OAS, as a
deliberate and systematic policy adopted by the government of that State which
affects a significant number of people, shall be considered to be an urgent
problem and one that is of common interest to the American states.
2.
The Inter-American Commission on Human Rights may decide, with the
affirmative vote of five of its members, that forced disappearances are
practiced in a State as the manifestation of a deliberate and systematic policy
of the government of that State.
3.
In the event that the Commission adopts the decision set forth in the
foregoing paragraph, it shall so inform the Permanent Council of the
Organization so that any member state may request, in accordance with the
provisions of Article 60 of the Charter of the OAS, convocation of a Meeting of
Consultation of Ministers of Foreign Affairs, to take cognizance of the
situation in respect of that State, and adopt any pertinent measures.
Article
26
This Convention is open to signature by the member
states of the Organization of American States.
Article
27
This Convention is subject to ratification.
The instruments of ratification shall be deposited with the General
Secretariat of the Organization of American States.
Article
28
This Convention is open to accession by any other
State. The instruments of accession
shall be deposited with the General Secretariat of the Organization of American
States.
Article
29
The States Parties may, at the time of approval,
signature, ratification, or accession, make reservations to this Convention,
provided that such reservations are not incompatible with the object and purpose
of the Convention and concern one or more specific provisions.
Article
30
This Convention shall enter into force on the
thirtieth day following the date on which the second instrument of ratification
is deposited. For each State
ratifying or acceding to the Convention after the second instrument of
ratification has been deposited, the Convention shall enter into force on the
thirtieth day following the date on which that State deposits its instrument of
ratification or accession.
Article
31
This Convention shall remain in force
indefinitely, but may be denounced by any State Party.
The instrument of denunciation shall be deposited with the Secretariat of
the Organization of American States. After
one year from the date of deposit of the instrument of denunciation, this
Convention shall cease to be in effect for the denouncing State but shall remain
in force for the remaining States Parties.
Article
32
The original instrument of this Convention, the
English, French, Portuguese, and Spanish texts of which are equally authentic,
shall be deposited with the Secretariat of the Organization of American States,
which shall send a certified copy to the Secretariat of the United Nations for
registration and publication, in accordance with the provisions of Article 102
of the United Nations Charter. The
Secretariat of the Organization of American States shall notify the member
states of the Organization and the states that have acceded to the Convention,
of signatures and of deposits of instruments of ratification, accession, and
denunciation, as well as of reservations, if any.
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