Practice Relating to Rule 98. Enforced Disappearance
According to Peru’s Human Rights Charter of the Security Forces (1991), causing the disappearance of a detainee is one of the gravest violations of human rights.
Peru’s IHL and Human Rights Manual (2010), in a section on the relationship between IHL and human rights law, states:
There are … principles common to the  Geneva Conventions and human rights law which represent a minimum level of protection to which every human person is entitled … [including] [r]espect for … physical and mental integrity …
Regarding these fundamental guarantees there is no exception whatsoever and they are binding both in times of peace and in times of armed conflict.
In a section on human rights, the manual states:
The prohibition of any arbitrary deprivation of life is a fundamental principle which protects life in various circumstances, … [including] … [e]nforced or involuntary disappearance which [i]s considered as one of the most serious human rights violations and has been qualified by the human rights commission as one of the practices that violate, to a certain degree, all fundamental rights of the individual. The Human Rights Committee considers [enforced or involuntary disappearance] as violating the right to personal liberty and the right to humane treatment. Lastly, the Inter-American Commission [on Human Rights] qualifies [enforced or involuntary disappearance] as a cruel and inhuman process, … as arbitrary deprivation of liberty of a person [and] as a serious threat to the person’s integrity.
The manual further states: “Making a person disappear is the most serious violation of human rights, which is why it may not be carried out or permitted. The detention/disappearance of any person is severely punished by law.”
Peru’s Penal Code (1998) punishes the carrying out of acts of enforced disappearance perpetrated by government agents.
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their places of habitual residence or who have resettled in another part of the country have a right to:
e) be protected against … enforced disappearance; as well as any threats and incitement to commit … [enforced disappearance].
In 2004, in the Genaro Villegas Namuche case, Peru’s Constitutional Court found:
3. Enforced disappearance violates several fundamental rights. In addition to violating the right to freedom of movement, it impedes the victim’s recourse to the applicable legal remedies that protect such rights, thus violating the right to challenge the legality of the detention in a court of law. … In addition, [enforced disappearance] generally involves acts of torture and inhuman and degrading treatment, thus violating the right to personal integrity. Further, the practice of enforced disappearance also usually involves the extrajudicial execution of detained persons and the subsequent hiding of their bodies. Such executions violate the right to life, while the act of hiding the bodies endeavours to ensure impunity for the act.
5. Extrajudicial execution, enforced disappearance or torture are cruel, terrible acts constituting serious human rights violations and cannot go unpunished. This is to say that the perpetrators and accomplices of human rights violations may not go without lawful punishment for their acts. Impunity can be the result of legislative measures when a legal text exempts perpetrators from punishment for human rights violations. Impunity can also de facto
result when, in spite of existing legislation providing for the punishment of those responsible, they remain free from punishment because of threats or the commission of further acts of violence.
In 2004, in the Gabriel Orlando Vera Navarrete case, Peru’s Constitutional Court stated:
Both common Article 3 [of the 1949 Geneva Conventions] and Article 4.2 of [the 1977] Additional Protocol II expressly prohibit the commitment of acts that result in a person’s disappearance. Moreover, common Article 3 prohibits any attempt on the life and personal integrity of a person, particularly murder of all kinds, mutilations, cruel treatment, and torture. Depriving a person of legal remedies and guarantees and ordering or carrying out acts aimed at making a person disappear shall be considered a grave breach of international humanitarian law that the state must punish.
The Court also stated:
23. The crime of enforced disappearance of persons violates various values because it affects a person’s freedom of movement, due process guarantees, the right to physical integrity and to recognition before the law as well as ... the right to effective legal protection. The protection of these rights shall be absolute because such protection is guaranteed by international human rights law and international humanitarian law.
24. Enforced disappearance of persons creates a cruel state of uncertainty both for the disappeared person and for his or her relatives who become direct victims themselves. Therefore, international law recognises the crime of enforced disappearance as one of the most serious types of human rights violations.
In 2005, in the Juan Nolberto Rivero Lazo case, Peru’s Constitutional Court stated:
26. The crime of enforced disappearance of persons violates various values because it affects a person’s freedom of movement, due process guarantees, the right to physical integrity and to recognition before the law as well as ... the right to effective legal protection. The protection of these rights shall be absolute because such protection is guaranteed by international human rights law and international humanitarian law.
27. Enforced disappearance of persons creates a cruel state of uncertainty both for the disappeared person and for his or her relatives who become direct victims themselves. Therefore, international law recognises the crime of enforced disappearance as one of the most serious types of human rights violations.
In 2006, in the Castillo Páez case, the Permanent Criminal Chamber of Peru’s Supreme Court of Justice stated:
[T]he definition of enforced disappearance seeks the protection of … amongst others the right to life, liberty and security, the prohibition against cruel, inhuman or degrading treatment, the right not to be arbitrarily detained, imprisoned or expelled, the right to fair trial and due process, the right to being recognised as a legal person before the law, and the right to human treatment when detained.
It also stated:
[U]p to this moment, the whereabouts of Castillo Páez are unknown, a situation that is a direct consequence of the perpetrator’s unlawful acts for which he must be held fully responsible.
Based on the evidently unquestionable fact that the fate of the student Ernesto Castillo Páez is still unknown, we must presume that his unlawful deprivation of liberty continues and thus the offence continues to be perpetrated – hence its definition as a continuous offence. It is possible to state in these cases that the offence was “continuously committed over time”. This was established by the Constitutional Court in case no. 2488-2002-HC/TC, Villegas Namuche Case, section 7, sub-section 26, fourth paragraph, which … is binding on all judicial decisions. Consequently and in conformity with Legislative Decree No. 959, Article 285 A, the proven facts of the present case fall within Article 320 of the Criminal Code currently in force, that is, they constitute a crime against humanity – enforced disappearance.
Three of the defendants, the civil party and the prosecutor appealed this judgment. In 2007, the First Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated with regard to the offence of enforced disappearance:
ii) the offence involves depriving the victim of his or her liberty in a clandestine way – hiding him or her – by means of detention, arrest, hijack, kidnapping or other methods. This is the typical definitional element of the offence which is essential for an enforced disappearance to occur and which has the effect of placing the victim outside the protection of the law and of the institutions.
iv) the offence is a “continuous offence” because the crime continues to be committed for as long as the whereabouts or fate of the person who has disappeared remain concealed. In this sense, the offence is not part of the past but continues to be committed for as long as the above-mentioned conditions are met.
In 2007, in the Chuschi case
, the National Criminal Chamber of Peru’s Supreme Court of Justice stated: “Both at the national and international levels, it is established that the crime of enforced disappearances is a continuous crime.”
The Court further stated:
[T]he crime of enforced disappearance, just like every crime against humanity, before becoming a positive rule of criminal law already belonged to what is called “ius cogens”, that is to say, it was part of common law. This is why for many scholars it was unnecessary for such crime to be incorporated into national legal frameworks. Since the crime of enforced disappearance was already part … of humankind, the ability to prosecute and punish such a crime is already an obligation binding every state, as has repeatedly been stated by the Inter-American Court of Human Rights in its jurisprudence.
The Court further stated:
[T]he international community has recognised enforced disappearance as a crime against humanity. Enforced disappearance constitutes an assault on various fundamental human rights. States are obliged to adopt legislative, administrative and political measures to … eradicate this crime against humanity.
The Court also discussed the elements of the crime of enforced disappearance:
According to our legislation, the crime of enforced disappearance is a special perpetrator offence, for the perpetrator can only be a public official or civil servant, that is to say, a state agent This requirement differs from international norms [on enforced disappearance] which include in their definition other persons or even political organizations as possible perpetrators. [footnote in original omitted]
With regards to the victim of the crime of enforced disappearance, the definition of the crime does not impose any restriction, allowing any person to be the victim of such crime, including public officials or civilians.
Commission of the crime:
The commission of the crime of enforced disappearance is committed in two stages which can occur simultaneously or in succession:
1. Deprivation of a person’s liberty, either lawfully or unlawfully. [footnote in original omitted]
2. One or more public officials or civil servants order or carry out acts in order to hide the victim without his or her family being able to find out his or her whereabouts. They abstain from providing information on the victim’s whereabouts. They thereby place the victim outside the protection of the law and impede his or her recourse to the applicable legal remedies established for his or her protection.
With regard to the requirement in our legislation that the person’s disappearance be duly proved, we must … state that such requirement is not found in any of the international texts. [To the contrary, lack] … of knowledge regarding the whereabouts of the victim is an intrinsic characteristic of the crime of enforced disappearance.
The Court also stated:
[A] victim who disappeared has suffered the violation of the following rights:
a) the right to life,
b) the right to physical and moral integrity, which is breached from the moment the disappeared persons were detained because they were detained by means of physical and psychological violence,
c) the right to physical liberty which is violated from the beginning of the victim’s detention which constitutes an arbitrary deprivation of liberty, a violation which continues until the person reappears.
d) the right to access to justice and due process of law.
The Court further stated:
[T]he crime of enforced disappearance is a continuous offence and therefore the status of disappeared person is granted from the moment the person is detained and his or her whereabouts become unknown until his or her location (dead or alive) is established. This is because:
- the violation to his or her rights continues;
- the person remains under the responsibility of his or her captors;
- his or her family continue to await information on his or her whereabouts.
The judgment by the National Criminal Chamber was partially appealed. On appeal, the Permanent Criminal Chamber found in 2007:
A. The crime of enforced disappearance has been defined by our criminal system as a crime against humanity … It violates fundamental human rights and the very essence of human dignity. More specifically, it contravenes the protection which the law must provide to every person arbitrarily deprived of his or her liberty and it impedes his or her access to the applicable legal remedies and procedural guarantees. …
B. The crime of enforced disappearance … involves not only a person’s deprivation of liberty by state agents – according to the limited view of our legislator – but also the systematic concealment of such detention in order to keep the victim’s whereabouts unknown. It can therefore be classified as a continuous offence, requiring a specific result and perpetrator. The perpetrator adopts a negative attitude towards providing information on the whereabouts of the victim, thus creating and maintaining a state of uncertainty regarding his or her fate and placing him or her outside the protection of the law and the judiciary. …
C. … [T]he crime of enforced disappearance is a continuous crime (an unlawful situation is generated as a consequence of a punishable act whose continuation depends on the will of the perpetrator). The fact is renewed continuously as a consequence of the victim’s deprivation of liberty and subsequently his or her disappearance … The crime must be committed by a specific perpetrator (the act shall only be punishable if it is committed by public officials or civil servants). …
D. … The crime involves the commission of two acts: deprivation of a person’s liberty followed by making him or her disappear which may take place in various ways. Enforced disappearance always involves the denial of any information on the person unlawfully detained, concealing his or her status or, at any rate, not acknowledging that he or she has been released, thus removing the victim from the protection of the law.