Practice Relating to Rule 98. Enforced Disappearance
Section C. Investigation of enforced disappearance
Colombia’s Basic Military Manual (1995) provides that “in time of peace, States have the obligation to take preventive measures”, inter alia
, to “create efficient mechanisms enabling disappeared persons to be located”.
Colombia’s Law on the Urgent Tracing Mechanism (2005) states in a chapter entitled “The Urgent Tracing Mechanism for the Prevention of the Crime of Enforced Disappearance”:
The urgent tracing mechanism is a public mechanism that protects the freedom, personal integrity and the other rights and safeguards from which persons benefit who are presumed to have disappeared.
Under no circumstances may the urgent tracing mechanism be considered as an obstacle, limitation or previous stage in constitutional habeas corpus proceedings or in a criminal investigation of the facts.
The Law also states: “Anybody who knows that a person has probably disappeared may request any judicial authority to activate the urgent tracing mechanism.”
In 2005, in the Constitutional Case No. C-473/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Both the obligation of the official to gather certain information when receiving the [tracing] request and the obligation to investigate and examine other sources if the person submitting the [tracing] request is unable to provide all the information strengthen the active role that judicial authorities in charge of carrying out the urgent tracing mechanism must assume.
In 2005, in the Constitutional Case No. C-575/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he specific mention in … [Law 975 of 2005] of the victims and their relatives and the knowledge of the fate of the disappeared or kidnapped cannot be understood but as Congress’ intention to underscore that it shall be the relatives of the kidnapped and disappeared who become the primary recipients of information regarding the victims, without this implying any restriction whatsoever to other victims’ right to know the truth, or to society’s more general right to know the truth.
In 2006, in the Constitutional Case No. C-370/06, the Plenary Chamber of Colombia’s Constitutional Court stated:
Article 12 of the Constitution, which prohibits enforced disappearance, and the Inter-American Convention on Enforced Disappearance … stipulate inter alia
the State’s obligation to seriously investigate the crime of enforced disappearance and to inform the victims and their families about the result of the investigations and the fate of the disappeared persons. This obligation must be immediately and officially complied with and does not require that the victims initiate or further the investigations. In addition, satisfactory compliance with this obligation requires the State to adopt all necessary measures to establish the whereabouts of disappeared persons as soon as possible since a delay of the investigation or of providing information to the interested persons constitutes a violation of the right of the disappeared persons’ relatives not to be subjected to cruel treatment.
[footnote in original omitted]
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence of Colombia stated:
In order to prevent forced disappearance and to support investigation of this offence and to aid the search for disappeared persons, the Ministry of Defence has also issued the following orders pursuant to Directive No. 6 of 2006:
- To take action as a matter of priority on requests from the judicial authorities regarding … investigation of the crime of forced disappearance, and the technical and scientific procedures which need to be pursued in these areas.
- To take the means necessary to ensure that the judicial authorities can conduct inquiries and collect evidence in safety.
In 2008, in its sixth periodic report to the Human Rights Committee, Colombia stated:
257. Security forces and human rights. The action of organized illegal armed groups in Colombia has demanded of the authorities the highest standards of efficiency and legitimacy. The security forces are facing criminals who will stop at nothing and who constantly disregard the principles of international humanitarian law at the expense of the civilian population.
258. In this context, the national Government, through the Ministry of National Defence, is making enormous efforts to ensure that members of the security forces are trained and adhere strictly to the principles of legality, protection, necessity and proportionality when confronting criminals. The international law of human rights and international humanitarian law have been incorporated into the training programmes and doctrine of the armed forces and National Police. …
259. In Colombia there is an institutional policy of zero tolerance against violations of human rights …
260. In that vein, the Ministry of Defence has issued the following directives:
b) Standing Ministerial Directive No. 6 of 2006, which aims to take measures to prevent the enforced disappearance of persons [and] to support investigation of this crime and the search for missing persons under the Emergency Search Mechanism[.]
In 2009, Colombia’s National Council for Social and Economic Policy approved a policy on the Consolidation of Mechanisms for the Tracing and Identification of Disappeared Persons in Colombia. The Policy states:
Colombia has made significant progress in the implementation and development of strategies that contribute to the prevention of enforced disappearance, such as Permanent Directive No. 6 of 2006 of the Ministry of National Defence. This document adopts measures to prevent enforced disappearance, to support the judicial authorities in the investigation of this crime and to search for disappeared persons …
iii. Responsibilities of the Colombian State in the search and identification of disappeared persons
… [I]t is possible to establish a set of State obligations to be observed by the tracing and identification mechanisms for persons disappeared as a result of violence. …
- To deploy the necessary investigative, technical, operational and scientific capacity for:
- generating sufficient information for determining the causes and circumstances of the disappearance (including the causes and circumstances of the death when applicable) and the persons potentially responsible.
The Policy also states:
The disappearance of a family member, and thus not knowing their fate or whereabouts, has psychological, economic, social and legal consequences that extend even to whole communities and affect their ability to face the past and take part in a lasting peace and reconciliation process. These disappearances are usually associated with violations of human rights and international humanitarian law[.]