Nunca Más: An analysis of international instruments on "disappearances"

Human Rights Quarterly

Volumn 19, Issue 2, 1997, Pages 365-405

  Brody, Reed ^a,b,c   González, Felipe ^b,d,e,f  

^a U Nations Observer Mission El S

^b International Human Rights Law Group

^c International Commission of Jurists Member of the UNESCO International Bioethics Committee   (Switzerland)

^d UNIVERSIDAD DIEGO PORTALES   (Chile)

^e Center on Law and Public Policy

^f AMERICAN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; INTERNATIONAL COOPERATION; POLITICAL VIOLENCE;

LATIN AMERICA;

EID: 0031449608     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1997.0012     Document Type: Review

References (257)

1. According to the UN Working Group on Enforced or Involuntary Disappearances (WGEID), countries with more than 100 transmitted cases of forced disappearances during the period between 1974 and 1995 include Algeria, Argentina, Chile, Colombia, El Salvador, Ethiopia, Guatemala, Honduras, India, Indonesia, Iran, Iraq, Lebanon, Mexico, Morocco, Nicaragua, Peru, the Philippines, Sri Lanka, Sudan, and Turkey. See Report of the Working Group on Enforced or Involuntary Disappearances, 107-17, U.N. Doc. E/CN.4/1996/38 (1996).
2. A representative case was "The lists of the 119" in Chile. The DINA, the dictatorship's main intelligence agency, arranged in 1975 to have published abroad, as supposedly killed in guerrilla actions in Argentina, lists of 119 persons whose cases had been presented as forced disappearances by their relatives. One list, containing fifty-nine names, was published in the newspaper "O Dia" from Curitiba, Brazil, re-founded exclusively for one day to print the list. Local Chilean newspapers, alerted by governmental authorities, reproduced the lists. See CODEPU, LA GRAN MENTIRA: EL CASO DE LAS 'LlSTAS DE LOS 119': APROXIMACIONES A LA GUERRA PSICOLÓCICA DE LA DICTADURA CHILENA (1994) (providing an extensive analysis).
3. See IAIN GUEST, BEHIND THE DISAPPEARANCES: ARGENTINA'S DIRTY WAR AGAINST HUMAN RIGHTS AND THE UNITED NATIONS 60-61 (1990) (providing an account of how the dictatorship in Argentina (1976-1983) attempted to infiltrate the Madres de la Plaza de Mayo, a group of mothers of victims of disappearance which held weekly meetings for years in front of the presidential palace in Buenos Aires).
4. Study of reported violations of human rights in Chile, with particular reference to torture and other cruel, inhuman or degrading treatment or punishment, ¶ 6(b), U.N. ESCOR, Supp. (No.6), at chap. XXIV, U.N. Doc. E/1979/36 (1979).
5. Human Rights in Chile, G.A. Res. 34/179, ¶ 6, U.N. GAOR, 34th Sess., Supp. (No. 46), U.N. Doc. A/34/36 (1979).
6. Id. ¶ 6.
7. Protection of human rights in Chile. G.A. Res. 35/188, ¶¶ 6-7, U.N. GAOR, 35th Sess., Supp. (No. 48), U.N. Doc. A/35/48 (1978).
8. Disappeared Persons, G.A. Res. 33/173, U.N. GAOR, 33d Sess., Supp. (No. 45), at 158, U.N. Doc. A/Res./33/1 73 (1978).
9. Id.
10. Id.
11. Id.
12. GUEST, supra note 3.
13. The Working Group on Enforced or Involuntary Disappearances comprises five members acting in their individual capacities. According to the WGEID, its primary role "is to act as a channel of communication between families of the disappeared persons and the Governments concerned, with a view to ensuring that sufficiently documented and clearly identified individual cases are investigated and the whereabouts of the disappeared persons clarified." Report of the Working Group on Enforced or Involuntary Disappearances, at 6, U.N. Doc. E/CN.4/1995/36 (1995). See also David Kramer et al., The 1980 UN Commission on Human Rights and the Disappeared, 3 HUM. RTS. Q. 18 (1981).
14. The Working Group on Enforced or Involuntary Disappearances comprises five members acting in their individual capacities. According to the WGEID, its primary role "is to act as a channel of communication between families of the disappeared persons and the Governments concerned, with a view to ensuring that sufficiently documented and clearly identified individual cases are investigated and the whereabouts of the disappeared persons clarified." Report of the Working Group on Enforced or Involuntary Disappearances, at 6, U.N. Doc. E/CN.4/1995/36 (1995). See also David Kramer et al., The 1980 UN Commission on Human Rights and the Disappeared, 3 HUM. RTS. Q. 18 (1981).
15. AMNESTY INTERNATIONAL USA, "DISAPPEARANCES": A WORKBOOK 126 (1981).
16. Human Rights in Chile, G.A. Res. 34/179, supra note 5.
17. AMNESTY INTERNATIONAL USA, supra note 14, at 137-38.
18. See THOMAS BUERGENTHAL ET AL., PROTECTING HUMAN RIGHTS IN THE AMERICAS: SELECTED PROBLEMS 291-301 (3d ed. 1990) (detailing the IACHR visit to Argentina and the discovery of clandestine prisoners).
19. OAS Doc. AG/Res. 510 (X-0180), compiled in PROCEEDINGS: TENTH REGULAR SESSION (of the OAS General Assembly) 79 (1981).
20. Resolution Concerning 1982/83 Annual Report of the Inter-American Commission on Human Rights, ¶ 4, OAS Doc. AG/Res. 666 (XIII-0/83), compiled in PROCEEDINGS: THIRTEENTH REGULAR SESSION (of the OAS General Assembly) 68 (1983); Resolution Concerning 1983/84 Annual Report of the Inter-American Commission on Human Rights, ¶ 4, OAS Doc. AG/Res. 742 (XIV-0/84), compiled in PROCEEDINGS: FOURTEENTH REGULAR SESSION (of the OAS General Assembly) 115, 116 (1984).
21. Resolution Concerning 1982/83 Annual Report of the Inter-American Commission on Human Rights, ¶ 4, OAS Doc. AG/Res. 666 (XIII-0/83), compiled in PROCEEDINGS: THIRTEENTH REGULAR SESSION (of the OAS General Assembly) 68 (1983); Resolution Concerning 1983/84 Annual Report of the Inter-American Commission on Human Rights, ¶ 4, OAS Doc. AG/Res. 742 (XIV-0/84), compiled in PROCEEDINGS: FOURTEENTH REGULAR SESSION (of the OAS General Assembly) 115, 116 (1984).
22. Velasquez Rodríguez Case, Case 7920, Ser. C, No. 4, Inter-Am. Ct. H.R. 35, OAS Doc. OEA/Ser.L/V/III.19/Doc.13 (1988) (judgment of 29 July 1988) (hereinafter Velasquez Rodríguez Case]; Godínez Cruz Case, Case 8097, Ser. C, No. 5, Inter-Am. Ct. H.R. 15, OAS Doc. OEA/Ser.L/V/III.21/Doc.14 (1989) (judgment of 20 January 1989). The Court also provided insightful analysis regarding the massive, systematic practice of this crime, the burden of proof, and the extent of states' obligations to respect and ensure human rights and the implications regarding forced disappearances. See id.; Velasquez Rodriguez Case, supra; Juan E. Méndez & José Miguel Vivanco, Disappearances and the Inter-American Court: Reflections on a Litigation Experience, 13 HAMLINE L. REV. 507 (1990) (providing an exhaustive analysis of these cases); see also Claudio Grossman, Disappearances in Honduras: The Need for Direct Victim Representation in Human Rights Litigation, 15 HASTINGS INT'L & COMP. L. REV. 363 (1992).
23. Velasquez Rodríguez Case, Case 7920, Ser. C, No. 4, Inter-Am. Ct. H.R. 35, OAS Doc. OEA/Ser.L/V/III.19/Doc.13 (1988) (judgment of 29 July 1988) (hereinafter Velasquez Rodríguez Case]; Godínez Cruz Case, Case 8097, Ser. C, No. 5, Inter-Am. Ct. H.R. 15, OAS Doc. OEA/Ser.L/V/III.21/Doc.14 (1989) (judgment of 20 January 1989). The Court also provided insightful analysis regarding the massive, systematic practice of this crime, the burden of proof, and the extent of states' obligations to respect and ensure human rights and the implications regarding forced disappearances. See id.; Velasquez Rodriguez Case, supra; Juan E. Méndez & José Miguel Vivanco, Disappearances and the Inter-American Court: Reflections on a Litigation Experience, 13 HAMLINE L. REV. 507 (1990) (providing an exhaustive analysis of these cases); see also Claudio Grossman, Disappearances in Honduras: The Need for Direct Victim Representation in Human Rights Litigation, 15 HASTINGS INT'L & COMP. L. REV. 363 (1992).
24. Velasquez Rodríguez Case, Case 7920, Ser. C, No. 4, Inter-Am. Ct. H.R. 35, OAS Doc. OEA/Ser.L/V/III.19/Doc.13 (1988) (judgment of 29 July 1988) (hereinafter Velasquez Rodríguez Case]; Godínez Cruz Case, Case 8097, Ser. C, No. 5, Inter-Am. Ct. H.R. 15, OAS Doc. OEA/Ser.L/V/III.21/Doc.14 (1989) (judgment of 20 January 1989). The Court also provided insightful analysis regarding the massive, systematic practice of this crime, the burden of proof, and the extent of states' obligations to respect and ensure human rights and the implications regarding forced disappearances. See id.; Velasquez Rodriguez Case, supra; Juan E. Méndez & José Miguel Vivanco, Disappearances and the Inter-American Court: Reflections on a Litigation Experience, 13 HAMLINE L. REV. 507 (1990) (providing an exhaustive analysis of these cases); see also Claudio Grossman, Disappearances in Honduras: The Need for Direct Victim Representation in Human Rights Litigation, 15 HASTINGS INT'L & COMP. L. REV. 363 (1992).
25. Velasquez Rodríguez Case, Case 7920, Ser. C, No. 4, Inter-Am. Ct. H.R. 35, OAS Doc. OEA/Ser.L/V/III.19/Doc.13 (1988) (judgment of 29 July 1988) (hereinafter Velasquez Rodríguez Case]; Godínez Cruz Case, Case 8097, Ser. C, No. 5, Inter-Am. Ct. H.R. 15, OAS Doc. OEA/Ser.L/V/III.21/Doc.14 (1989) (judgment of 20 January 1989). The Court also provided insightful analysis regarding the massive, systematic practice of this crime, the burden of proof, and the extent of states' obligations to respect and ensure human rights and the implications regarding forced disappearances. See id.; Velasquez Rodriguez Case, supra; Juan E. Méndez & José Miguel Vivanco, Disappearances and the Inter-American Court: Reflections on a Litigation Experience, 13 HAMLINE L. REV. 507 (1990) (providing an exhaustive analysis of these cases); see also Claudio Grossman, Disappearances in Honduras: The Need for Direct Victim Representation in Human Rights Litigation, 15 HASTINGS INT'L & COMP. L. REV. 363 (1992).
26. The Grupo de Iniciativa comprises FEDEFAM and leading Argentine human rights groups and associations of the relatives of the disappeared.
27. These different draft instruments are collected in LA DESAPARICIÓN: CRIMEN CONTRA LA HUMANIDAD (Grupo de Iniciativa por una Convención lnternacional sobre Ia Desaparición Forzada de Personas ed., 1987) [hereinafter LA DESAPARICIÓN]. The first two drafts were presented at the colloquium La política de desaparición forzada de personas, held in Paris in 1981. FEDEFAM's draft was approved at the Third Latin American Congress of Relatives of Detainees-Disappeared, in Huampaní, Lima, Perú, in 1982. See id. at 343. In addition, a draft declaration was prepared at the First Colloquium on Forced Disappearances in Colombia in 1986, convened by the Corporación Colectivo de Abogados José Alvear Restrepo. Corporacion Colectivo de Abogados José Alvear Restrepo, Proyecto de Declaración de la Asamblea General de las Naciones Unidas Sobre las Desapariciones Forzadas o Involuntarias de Personas, in id. at 169.
28. Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 U.N.T.S. 277 (entered into force 12 Jan. 1951) (entered into force for U.S. 23 Feb. 1989).
29. FEDEFAM, Proyecto de Conveneción Internacional Sobre Desaparecimiento Forzado, in LA DESAPARICIÓN, supra note 22, at 343.
30. Id. art. 2 (translation by the authors). The original Spanish definition reads: "toda acción o omisión dirigida a ocultar el paradero de un opositor o disidente político cuya suerte sea desconocida para su familia, amigos o partidarios, llevada a efecto con Ia intención de reprimir, impedir o entorpecer la oposición o disidencia, por quienes desempeñan funciones gubernativas, o por agentes públicos de cualquier clase o por grupos organizados de particulares que obran con apoyo o tolerancia de los anteriores." Id.
31. Initiative Group for an International Convention Against Forced Disappearance, Draft Convention on Forced Disappearances (on file with authors).
32. Paris Bar, Proyecto de Convención Internacional Sobre Ia Desaparidón Forzada de Personas, art. 1.1, in LA DESAPARICIÓN, supra note 22, at 313, 315 ("En la presente convención, Ia expresión 'desaparición forzada o involuntaria' se aplica a todo acto o hecho capaz de atentar contra Ia integridad física, psíquica o moral de cualquier persona.").
33. Declaration on the Protection of All Persons from Enforced Disappearances, G.A. Res. 47/133, U.M. GAOR, 47th Sess., Supp. (No. 49), U.N. Doc. A/47/49 (1992) [hereinafter UN Declaration].
34. Inter-American Convention on the Forced Disappearance of Persons, adopted 9 June 1994, OAS Doc. OEA/Ser.P/AC/Doc.3114/94 (1994) (not in force), reprinted in 33 I.L.M. 1529 (1994) [hereinafter OAS Convention].
35. See Question of the human rights of persons subject to any form of detention or imprisonment, C.H.R. Decision 1986/106, U.N. ESCOR, Comm'n on Hum. Rts., 42d Sess., Supp. (No. 2), at chap. II.B, U.N. Doc. E/CN.4/1986/65 (1986) (repeating earlier invitations to the Sub-Commission).
36. Draft Declaration on the Protection of all Persons from Enforced or Involuntary Disappearance, Annex I, U.N. Doc. E/CN.4/Sub.2/1988/28 (1988). The draft was prepared by Nigel Rodley and Ingrid Kirscher of Amnesty International, David Weissbrodt of the Minnesota Lawyers Committee for Human Rights, and Reed Brody of the International Commission of Jurists. Id.
37. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/39/51 (1985), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985) (entered into force 26 June 1987).
38. Id.
39. Question of the human rights of persons subject to any form of detention or imprisonment: draft declaration on the protection of all persons from enforced or involuntary disappearances, S.P.D.P.M. Res. 1988/17, U.N. ESCOR, Subcomm'n on Prev. of Discrim. & Protect, of Min., 40th Sess., at chap. II A U.N. Doc. E/CN.4/Sub.2/ 1988/17(1988).
40. Report of the Secretary-General on the Analytical Compilation of Comments and Views on the "Draft Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance," U.N. Doc. E/CN.4/Sub.2/1989/24 (1989); Addendum to the Report of the Secretary-General, U.N. Doc. E/CN.4/Sub.2/1989/24/Add. 1 (1989).
41. Report of the Secretary-General on the Analytical Compilation of Comments and Views on the "Draft Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance," U.N. Doc. E/CN.4/Sub.2/1989/24 (1989); Addendum to the Report of the Secretary-General, U.N. Doc. E/CN.4/Sub.2/1989/24/Add. 1 (1989).
42. Report of the Working Group on Detention, U.N. ESCOR, Comm'n on Hum. Rts., ¶¶ 8, 12-13, U.N. Doc. E/CN.4/Sub.2/1989/279/Rev.1 (1989).
43. Id. Annex 1.
44. Id. ¶ 22.
45. Also participating were Working Group on Detention members Mary Concepcion Bautista (Philippines) and Louis Joinet (France); Sub-Commission alternates Kees Flinterman (Netherlands) and Yozo Yokota (Japan); and WGEID members Toine van Dongen (Netherlands) and Diego Garcia-Sayan (Peru). Representatives of the government of Portugal and of the UN Centre for Human Rights also participated. In addition to ICJ representatives, NGO delegates came from Amnesty International (Nigel Rodley), FEDEFAM, the Federation Internationale des Droits de l'Homme, and the Minnesota Lawyers Committee for Human Rights.
46. Report of the Working Group on Detention, Annex 1, ¶ 19, U.N. Doc. E/CN.4/Sub.2/ 1990/32 (1990). The 1991 WGEID report described the adoption of the draft declaration by the Sub-Commission as " major step forward in the fight against enforced or involuntary disappearances," recommending the Commission to adopt the draft at its forty-seventh session. Report of the Working Group on Enforced or Involuntary Disappearances, ¶¶ 28-29, U.N. Doc. E/CN.4/1991/20 (1991).
47. Report of the Working Group on Detention, Annex 1, ¶ 19, U.N. Doc. E/CN.4/Sub.2/ 1990/32 (1990). The 1991 WGEID report described the adoption of the draft declaration by the Sub-Commission as " major step forward in the fight against enforced or involuntary disappearances," recommending the Commission to adopt the draft at its forty-seventh session. Report of the Working Group on Enforced or Involuntary Disappearances, ¶¶ 28-29, U.N. Doc. E/CN.4/1991/20 (1991).
48. Question of enforced or involuntary disappearances, C.H.R. Res. 1991/41, ¶ 19, U.N. ESCOR, Comm'n on Hum. Rts., 47th Sess., U.N. Doc. E/CN.4/1991/91 (1991).
49. Report of the Working Group on the Declaration on the Protection of All Persons from Enforced Disappearance, U.N. Doc. E/CN.4/1992/19/Rev.l (1991).
50. Analysis of the Draft Inter-American Convention on the Forced Disappearance of Persons, at 3, OAS Doc. OEA/Ser.G/CP/CAJP-890-93 (1993).
51. Resolution Concerning 1986/87 Annual Report of the Inter-American Commission on Human Rights, ¶ 11, OAS Doc. AC/Res. 890 (XVII-0/87), compiled in PROCEEDINGS: SEVENTEENTH REGULAR SESSUN (of the OAS General Assembly) 54 (1987). The General Assembly itself was acting on a suggestion from the IACHR. See Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.P/AG/doc.2167/87 (1987).
52. Resolution Concerning 1986/87 Annual Report of the Inter-American Commission on Human Rights, ¶ 11, OAS Doc. AC/Res. 890 (XVII-0/87), compiled in PROCEEDINGS: SEVENTEENTH REGULAR SESSUN (of the OAS General Assembly) 54 (1987). The General Assembly itself was acting on a suggestion from the IACHR. See Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.P/AG/doc.2167/87 (1987).
53. Comments on Draft Inter-American Convention on Forced Disappearance of Persons, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS, OAS Doc. OEA/Ser.L/V/ 11.74/Doc.10/Rev.1, at 346, 346-47 (1988); Draft Inter-American Convention on Forced Disappearance of Persons, in id. at 351. Juan Méndez, as Director of Americas Watch, played a key role in preparing the Commission's draft. Venezuela was at that stage the single government that transmitted its comments to the IACHR. Comments on Draft Inter-American Convention on Forced Disappearance of Persons, supra, at 347.
54. Comments on Draft Inter-American Convention on Forced Disappearance of Persons, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS, OAS Doc. OEA/Ser.L/V/ 11.74/Doc.10/Rev.1, at 346, 346-47 (1988); Draft Inter-American Convention on Forced Disappearance of Persons, in id. at 351. Juan Méndez, as Director of Americas Watch, played a key role in preparing the Commission's draft. Venezuela was at that stage the single government that transmitted its comments to the IACHR. Comments on Draft Inter-American Convention on Forced Disappearance of Persons, supra, at 347.
55. Comments on Draft Inter-American Convention on Forced Disappearance of Persons, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS, OAS Doc. OEA/Ser.L/V/ 11.74/Doc.10/Rev.1, at 346, 346-47 (1988); Draft Inter-American Convention on Forced Disappearance of Persons, in id. at 351. Juan Méndez, as Director of Americas Watch, played a key role in preparing the Commission's draft. Venezuela was at that stage the single government that transmitted its comments to the IACHR. Comments on Draft Inter-American Convention on Forced Disappearance of Persons, supra, at 347.
56. Over the years, this group had to be reinstated in several opportunities as its membership experienced many changes. Year after year, the General Assembly instructed the Permanent Council to continue with its work on this matter. Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1014 (XIX-O/89), compiled in PROCEEDINGS: NINETEENTH REGULAR SESSION (of the OAS General Assembly)(1989); Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1033 (XX-O/90), compiled in PROCEEDINGS: TWENTIETH REGULAR SESSION (of the OAS General Assembly) 16 (1990); Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1095 (XXI-0/91), compiled in PROCEEDINGS: TWENTY-FIRST REGULAR SESSION (of the OAS General Assembly) 42 (1991).
57. Over the years, this group had to be reinstated in several opportunities as its membership experienced many changes. Year after year, the General Assembly instructed the Permanent Council to continue with its work on this matter. Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1014 (XIX-O/89), compiled in PROCEEDINGS: NINETEENTH REGULAR SESSION (of the OAS General Assembly)(1989); Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1033 (XX-O/90), compiled in PROCEEDINGS: TWENTIETH REGULAR SESSION (of the OAS General Assembly) 16 (1990); Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1095 (XXI-0/91), compiled in PROCEEDINGS: TWENTY-FIRST REGULAR SESSION (of the OAS General Assembly) 42 (1991).
58. Over the years, this group had to be reinstated in several opportunities as its membership experienced many changes. Year after year, the General Assembly instructed the Permanent Council to continue with its work on this matter. Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1014 (XIX-O/89), compiled in PROCEEDINGS: NINETEENTH REGULAR SESSION (of the OAS General Assembly)(1989); Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1033 (XX-O/90), compiled in PROCEEDINGS: TWENTIETH REGULAR SESSION (of the OAS General Assembly) 16 (1990); Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1095 (XXI-0/91), compiled in PROCEEDINGS: TWENTY-FIRST REGULAR SESSION (of the OAS General Assembly) 42 (1991).
59. Draft Inter-American Convention on the Forced Disappearance, OAS Doc. AG/RES. 1172 (XXII-0/92), compiled in PROCEEDINGS: TWENTY-SECOND REGULAR SESSION (of the OAS General Assembly) 70 (1991).
60. For instance, then-Deputy Foreign Minister of Chile Edmundo Vargas-Carreño, a former IACHR Executive Director, called the draft a "serious step backwards" and "a shame instead of a contribution." Reed Brody & Felipe Gonzalez, Human Rights Development at OAS General Assembly, 48 REV. INT'L COMM'N IURISTS 68, 70 (1992).
61. Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1172 (XXII-O/92), compiled in PROCEEDINGS: TWENTIETH REGULAR SESSION (of the OAS General Assembly) 70, ¶¶ 3-4 (1992). See Brody & Gonzalez, supra note 48, at 71.
62. Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. AG/RES. 1172 (XXII-O/92), compiled in PROCEEDINGS: TWENTIETH REGULAR SESSION (of the OAS General Assembly) 70, ¶¶ 3-4 (1992). See Brody & Gonzalez, supra note 48, at 71.
63. In addition to the Law Group, the coalition included Americas Watch, the Center for Human Rights and Humanitarian Law at American University, the Center for Human Rights Legal Action, the Center for Justice and International Law (CEJIL), the International Commission of Jurists, and the Washington Office on Latin America (WOLA).
64. Analysis of the Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 43. This document was presented to the working group and discussed by NGOs representatives with working group members. The governments of Argentina, Brazil, Canada, Chile, Colombia, Mexico, and the United States also submitted comments.
65. OAS Convention, supra note 29.
66. See LA DESAPARICIÓN, supra note 22 (containing the proposals of the various NGO texts). Most would now agree that disappearances contain at least two elements: (1) a deprivation of liberty by state agents, followed by (2) concealment of the detainee's whereabouts. See AMNESTY INTERNATIONAL, "DISAPPEARANCES" AND POLITICAL KILLINGS 84-85 (1994). However, the early NGO definitions looked only at the second element.
67. Reed Brody, Commentary on the Draft UN "Declaration on the Protection of all Persons from Enforced or Involuntary Disappearances," 8 NETHERLANDS Q. HUM. RTS. 381, 386 (1990).
68. UN Declaration, supra note 28, pmbl., ¶ 3. The WGEID has referred to this description as a definition. See Report of the Working Group on Enforced or Involuntary Disappearances, supra note 1, ¶ 55. While the last phrase ("placing such persons outside the protection of the law") is more a consequence of a disappearance than a constituent element of one, it was added in both instruments to exclude situations in which the authorities momentarily delay notification of an arrest in order to complete an operation. UN Declaration, supra note 28. The IACHR draft covered this by referring to situations in which no information was provided within "a reasonable period of time." Draft Inter-American Convention on Forced Disappearance of Persons, supra note 49, art. 2.
69. UN Declaration, supra note 28, pmbl., ¶ 3. The WGEID has referred to this description as a definition. See Report of the Working Group on Enforced or Involuntary Disappearances, supra note 1, ¶ 55. While the last phrase ("placing such persons outside the protection of the law") is more a consequence of a disappearance than a constituent element of one, it was added in both instruments to exclude situations in which the authorities momentarily delay notification of an arrest in order to complete an operation. UN Declaration, supra note 28. The IACHR draft covered this by referring to situations in which no information was provided within "a reasonable period of time." Draft Inter-American Convention on Forced Disappearance of Persons, supra note 49, art. 2.
70. Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, art. 2, OAS Doc. OEA/Ser.P/AG/Doc.3072/94 (1994). This report recognizes that "[t]he source of this definition is the third paragraph of the preamble to the United Nations Declaration (Resolution 47/133), and it includes the factors involved in the forced disappearance of persons." Id. at 22.
71. OAS Convention, supra note 29, art. 2.
72. UN Declaration, supra note 28, art. 1,¶ 2. These rights violated by the crime of forced disappearance are the same that the WGEID has considered to be affected. The Sub-Commission's draft considered that disappearances violated the right not to be tortured, without reference to the lesser standard of cruel, inhuman or degrading treatment or punishment. However, the United Kingdom and Sweden objected to this.
73. Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, supra note 56, at 20. The report adds that "it was decided to leave it up to the courts of the country concerned, the IAHRC or the Inter-American Court of Human Rights to determine which rights have been violated." In fact, the Inter-American Court of Human Rights has done so in the past, stating that the forced disappearance of persons violates the right to personal liberty, the right to psychological and physical integrity, and the right to life. Velasquez Rodriguez Case, supra note 20, ¶¶ 155-57.
74. OAS Convention, supra note 29, pmbl. See American Convention on Human Rights, opened for signature 22 Nov. 1969, O.A.S.T.S. 36, OAS Off Rec. OEA/Ser.L/V/ll.23/ Doc.21/Rcv.2, reprinted in 9 I.L.M. 673 (1970) (entered into force 18 July 1978); American Declaration of the Rights and Duties of Man, signed 2 May 1948, O.A.S. Off. Rec. OEA/Ser.L/V/II.23/doc.21/Rev.6 (English 1979); Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), 3 U.N. GAOR (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949). The first draft of the OAS Convention, prepared by the IACHR, did not contain a list of rights affected either. However, the 1993 draft included a list very similar to that of the UN Declaration. Progress Report of the Permanent Council Concerning the Work on the Draft Inter-American Convention on the Forced Disappearance of Persons, pmbl., OAS Doc. OEA/Ser.P/AG/doc.2952/93 (1993).
75. Charter of the International Military Tribunal, arts. 6, 82 U.N.T.S. 284, 288 (1951), reprinted in 1 TRIALS OF WAR CRIMINALS BEFORE THE NüRNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10, xi (1946-1949).
76. Id., ¶ c. See also Telford Taylor, Nuremberg Trials: War Crimes and International Law, in 1949 INT'L CONCILIATION 241, 342 (recounting that the Tribunal held "that the language of [its charter] limited its jurisdiction to such crimes as were committed in the course of or in connection with aggressive war," and thereby avoided reaching the question of "whether mass atrocities committed by or with the approval of a government against a racial or religious group of its own inhabitants in peacetime constitute crimes under international law," as contended by the prosecution).
77. Control Council Law No. 10, enacted by the four powers to prosecute certain crimes with which the Nuremberg tribunal had not dealt, provided a definition of crimes against humanity that "differed in certain particulars from the comparable definition" in the charter of the International Military Tribunal, Taylor, supra note 62, at 343, covering atrocities committed outside the scope of war such as "participating in the persecution of Jews during the prewar years." Id. at 303 (emphasis omitted).
78. See Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted 26 Nov. 1968, 754 U.N.T.S. 73, G.A. Res. 2391 (XXIII), Annex, 23 U.N. GAOR Supp. (No. 18), at 40, U.N. Doc. A/7218 (1968) (entered into force 11 Nov. 1970); International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted 30 Nov. 1973, G.A. Res. 3068 (XVIII), Annex (entered into force 18 July 1976). In his report on the International Tribunal for the Former Yugoslavia, the UN Secretary-General made clear that "[c]rimes against humanity are ... prohibited regardless of whether they are committed in an armed conflict, international or internal in character." Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), ¶ 47, U.N. Doc. S/25704 (1993).
79. EUR. PARL. Ass. RES. No. 828 (1984).
80. Velasquez Rodríguez Case, supra note 20, ¶ 158.
81. Id. ¶ 153. See also Forti v. Suarez Mason, 694 F. Supp. 707 (N.D. Cal. 1988) (a United States court finding that the tort of "causing disappearances" was a crime, based on a broad international consensus).
82. Resolution Concerning 1982/83 Annual Report of the Inter-American Commission on Human Rights, supra note 19.
83. Resolution Concerning 1983/84 Annual Report of the Inter-American Commission on Human Rights, supra note 19, pmbl. Both OAS resolutions were cited by the Inter-American Court in its Velasquez Rodriguez decision. Velasquez Rodriguez Case, supra note 20, ¶ 153.
84. Resolution Concerning 1988/89 Annual Report of the Inter-American Commission on Human Rights, ¶ 6, OAS Doc. AG/Res. 1022 (XIX-0/89), compiled in PROCEEDINGS: NINETEENTH REGULAR SESSION (of the OAS General Assembly) (1989); Resolution Concerning 1989/90 Annual Report of the Inter-American Commission on Human Rights, ¶ 6, OAS Doc. AG/Res. 1044 (XX-0/90), compiled in PROCEEDINGS: TWENTIETH REGULAR SESSION (of the OAS General Assembly) 34 (1984).
85. Resolution Concerning 1988/89 Annual Report of the Inter-American Commission on Human Rights, ¶ 6, OAS Doc. AG/Res. 1022 (XIX-0/89), compiled in PROCEEDINGS: NINETEENTH REGULAR SESSION (of the OAS General Assembly) (1989); Resolution Concerning 1989/90 Annual Report of the Inter-American Commission on Human Rights, ¶ 6, OAS Doc. AG/Res. 1044 (XX-0/90), compiled in PROCEEDINGS: TWENTIETH REGULAR SESSION (of the OAS General Assembly) 34 (1984).
86. Draft Declaration on the Protection of all Persons from Enforced or Involuntary Disappearance, Annex I, U.N. Doc. E/CN.4/Sub.2/1990/32 (1990). The Committee against Torture considers that torture is being "systematically practiced" in a state, and its on-site powers thus triggered under Article 20 of the Convention against Torture, when it is apparent that the torture cases reported have not occurred fortuitously . . . but are seen to be habitual, widespread and deliberate in at least a considerable part of the . . . country. . . . Torture may in fact be of a systematic character without resulting from the direct intention of a Government. It may be the consequence of factors which the Government has difficulty in controlling, and its existence may indicate a discrepancy between policy as determined by the central Government and its implementation by local administration. Inadequate legislation which in practice allows for the use of torture may also add to the systematic nature of this practice. Report of the Committee against Torture, Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey, ¶ 39, U.N. Doc. A/48/44/Add.1 (1993).
87. Draft Declaration on the Protection of all Persons from Enforced or Involuntary Disappearance, Annex I, U.N. Doc. E/CN.4/Sub.2/1990/32 (1990). The Committee against Torture considers that torture is being "systematically practiced" in a state, and its on-site powers thus triggered under Article 20 of the Convention against Torture, when it is apparent that the torture cases reported have not occurred fortuitously . . . but are seen to be habitual, widespread and deliberate in at least a considerable part of the . . . country. . . . Torture may in fact be of a systematic character without resulting from the direct intention of a Government. It may be the consequence of factors which the Government has difficulty in controlling, and its existence may indicate a discrepancy between policy as determined by the central Government and its implementation by local administration. Inadequate legislation which in practice allows for the use of torture may also add to the systematic nature of this practice. Report of the Committee against Torture, Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey, ¶ 39, U.N. Doc. A/48/44/Add.1 (1993).
88. UN Declaration, supra note 28, pmbl., ¶ 4.
89. Comments on Draft Inter-American Convention on Forced Disappearance of Persons, supra note 45, at 348.
90. Id.
91. Second Draft Inter-American Convention on the Forced Disappearance of Persons, OAS Doc. OEA/Ser.G/CP/CAJP-866/92/Rev.2 (1992).
92. Observaciones de los Gobiernos al Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas conforme a la resolución AG/RES. 1172 (XXII-0/92), OAS Doc. OEA/Ser.G/CP/CAJP-756/92 (1992) [hereinafter Observaciones I], at add. 8-a (Argentina).
93. Id. add. 9-a (Chile).
94. See Analysis of the Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 43, at 16.
95. Informe del presidente del grupo sobre el estado de los trabajos relativos al proyecto de convención Interamericana sobre desaparición forzada de personas, pmbl., OAS Doc. OEA/Ser.G/CP/CAPJ-900/93/corr.1 (1993).
96. OAS Convention, supra note 29, pmbl.
97. Importantly, the countries adopting the OAS Convention in Belém attached to the text an appendix entitled Observations of the Chairman on the importance of the Preamble in international treaties, in Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, supra note 56, app. V (1994). On the basis of the Vienna Convention on the Law of Treaties, jurisprudence from the International Court of Justice, and doctrine, the Chairman concluded that preambles have been internationally recognized as binding upon the parties to a treaty. Unfortunately, in the English version of the UN's standard reference work, the reprint of the UN Declaration omits the Preamble (which also contains the "definition"). Human Rights: A Compilation of International Instruments, at 401, U.N. Doc. ST/HR/1/ Rev.4 (1993).
98. Importantly, the countries adopting the OAS Convention in Belém attached to the text an appendix entitled Observations of the Chairman on the importance of the Preamble in international treaties, in Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, supra note 56, app. V (1994). On the basis of the Vienna Convention on the Law of Treaties, jurisprudence from the International Court of Justice, and doctrine, the Chairman concluded that preambles have been internationally recognized as binding upon the parties to a treaty. Unfortunately, in the English version of the UN's standard reference work, the reprint of the UN Declaration omits the Preamble (which also contains the "definition"). Human Rights: A Compilation of International Instruments, at 401, U.N. Doc. ST/HR/1/ Rev.4 (1993).
99. UN Declaration, supra note 28, art. 2, ¶ 1; OAS Convention, supra note 29, art. 1(a).
100. UN Declaration, supra note 28, art. 2, ¶ 2; OAS Convention, supra note 29, art. 1(c).
101. UN Declaration, supra note 28, art. 3. This is drawn from Article 2, paragraph 1 of the Convention against Torture. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/39/51 (1985), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985) (entered into force 26 June 1987) [hereinafter Convention against Torture]. Referring to this convention, Burgers and Danelius noted that: The obligation under Article 2 is not only to prohibit but to prevent acts of torture. This further emphasizes that the measures shall be effective: a formal prohibition is not sufficient, but the acts shall actually be prevented. This does not mean, of course, that a State can guarantee that no act of torture will ever be committed in its territory. It is sufficient that the State does what can reasonably be expected from it in order to prevent such acts from occurring. If nevertheless such acts occur, other obligations under the Convention become applicable, and the State may then be obliged . . . to take further effective measures in order to prevent a repetition. J. HERMAN BURGERS & HANS DANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE 123 (1988).
102. OAS Convention, supra note 29, art. 1(d).
103. Velásquez Rodríguez Case, supra note 20, ¶ 174.
104. Report of the Working Group on Enforced or Involuntary Disappearances, supra note 1, ¶ 48.
105. Id. ¶ 52.
106. Id.
107. UN Declaration, supra note 28, art. 4, ¶ 1; OAS Convention, supra note 29, art. 1(b), art. 3. The UN Declaration requires that "acts of enforced disappearance shall be offences under criminal law" with appropriately severe penalties. UN Declaration, supra note 28, art. 4, ¶ 1. According to the WGEID, "[i]t is not sufficient for Governments to refer to previously existing criminal offences relating to enforced deprivation of liberty, torture, intimidation, excessive violence, etc. In order to comply with Article 4 of the Declaration, the very act of enforced disappearance . . . must be made a separate criminal offence." Report of the Working Group on Enforced or Involuntary Disappearances, supra note 1, ¶ 54. The UN Sub-Commission's requirement that disappearances be codified as "specific crimes of the gravest kind" was rejected at the inter-governmental working group, however, on the proposal of the United States. The Convention requires states "to adopt, in accordance with their constitutional procedures, the legislative measures that may be needed to define the forced disappearance of persons as an offense and to impose an appropriate punishment commensurate with its extreme gravity." OAS Convention, supra note 29, art. 3.
108. Convention against Torture, supra note 84, art. 4.
109. UN Declaration, supra note 28, art. 4, ¶ 2; OAS Convention, supra note 29, art. 3.
110. In commenting on its proposal, the IACHR stated: "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." Comments on Draft Inter-American Convention on Forced Disappearance of Persons, supra note 45, at 348.
111. Analysis of the Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 43.
112. Report of the Working Group on Enforced or Involuntary Disappearances, supra note 40, ¶ 406.
113. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
114. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
115. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
116. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
117. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable
118. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
119. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
120. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
121. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
122. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
123. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
124. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
125. See Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS 1992-1993, at 41, OAS Doc. OEA/Ser.L/V/II.83/Doc.14/corr. 1 (1993) (reporting the IACHR's finding in six cases that Argentina's Law No. 23,492 and Law No. 23,521 providing amnesty for grave human rights violations violated the American Convention on Human Rights); Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, in id. at 154 (reporting the IACHR's finding in eight cases that Uruguay's Law No. 15,848 providing amnesty for grave human rights violations violated the American Convention on Human Rights); see also Robert Goldman, Amnesty Laws, International Law and the American Convention on Human Rights, in THE LAW GROUP DOCKET vol. 6, no. 1, 1989, at 1 (providing an analysis of these cases); Robert Kogod Goldman, International Law & Amnesty Laws, H.R.I. REP., Winter 1988, at 9; La decisión de la Comisión Interamericana de Derechos Humanos sobre la compatibilidad de la ley uruguaya de caducidad con el Pacto de San José (Convención Americana), Paper presented to a Seminar organized by the Andean Commission of Jurists Colombian Branch, 1992 (on file with authors); AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE (1991); Alejandro M. Garro & Henry Dahl, Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward, 8 HUM. RTS. L.J. 283 (1987); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12 HUM. RTS. Q. 1 (1990); Robert Norris, Leyes de Impunidad y los Derechos Humanos en las Américas: una respuesta legal 15 REVISTA IIDH (INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS) 47 (1991); Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 HUM. RTS. Q. 105 (1994); THE JUSTICE AND SOCIETY PROGRAM OF THE ASPEN INSTITUTE, STATE CRIMES: PUNISHMENT OR PARDON (1989); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Applicable Principles and Political Constraints, 13 HAMLINE L. REV. 623 (1990) (addressing the issue of amnesty laws).
126. UN Declaration, supra note 28, art. 18, ¶ 1.
127. Id. art. 18, ¶ 2.
128. The draft Convention prepared by the Inter-American Commission does not address amnesty laws, either.
129. Nigel Rodley, The UN Draft Declaration on the Protection of All Persons from Enforced Disappearance, Paper presented at the International Conference on Political Killings and Disappearances, Sponsored by Amnesty International (Amsterdam, 1992) (on file with authors).
130. Id. at 17. See also NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW (1987); Orentlicher, supra note 96. For Rodley, a declaration, not being a formal legal instrument, can and should address the issue, as the UN Declaration does.
131. Id. at 17. See also NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW (1987); Orentlicher, supra note 96. For Rodley, a declaration, not being a formal legal instrument, can and should address the issue, as the UN Declaration does.
132. Id. at 17. See also NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW (1987); Orentlicher, supra note 96. For Rodley, a declaration, not being a formal legal instrument, can and should address the issue, as the UN Declaration does.
133. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, art. II(b) (1945), reprinted in 1 TRIALS OF WAR CRIMINALS BEFORE THE NÜRNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, supra note 61, at xvi.
134. See Roland Bersier, Extenuating Circumstances According to the Principle of Superior Orders, in JUSTICE, NOT IMPUNITY 223 (Commission nationale consultative des Droits de l'Homme & International Commission of Jurists eds., 1993).
135. The epitome of this trend was the Argentine due obedience law, which created the irrefutable presumption that the military and police had acted under superior orders in committing certain offenses.
136. See Inter-American Convention to Prevent and Punish Torture, art. 4, adopted 9 Dec. 1985, O.A.S.T.S. 67, OAS Doc. OEA/Ser.P/AG/Doc.2023/85/Rev.1 (1986) at 46 (entered into force 28 Feb. 1987), reprinted in 25 I.L.M. 519 (1986) [hereinafter Inter-American Torture Convention]; Convention against Torture, supra note 84, art. 2, ¶ 3; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, princ. 3, adopted 24 May 1989, E.S.C. Res. 1989/65, Annex, 1989 U.N. ESCOR Supp, (No.1), at 52, U.N. Doc. E/1989/89 (1989); Code of Conduct for Law Enforcement Officials, art. 5, G.A. Res. 34/169, Annex, 34 U.N. GAOR Supp. (No. 46), at 186, U.N. Doc A/34/46 (1979) (banning use of the due obedience excuse).
137. The UN Declaration, supra note 28, adds: 2. Each State shall ensure that orders or instructions directing, authorizing or encouraging any enforced disappearance are prohibited. 3. Training of law enforcement officials shall emphasize the [above] provisions. Id. art. 6.
138. Inter-American Torture Convention, supra note 105.
139. Second Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 75, art. 8. See Reed Brody & Felipe González, The Draft Inter-American Convention on the Forced Disappearance of Persons 4, Paper presented at the International Conference on Political Killings and Disappearances, Sponsored by Amnesty International (Amsterdam, 1992) (on file with authors).
140. Second Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 75, art. 8. See Reed Brody & Felipe González, The Draft Inter-American Convention on the Forced Disappearance of Persons 4, Paper presented at the International Conference on Political Killings and Disappearances, Sponsored by Amnesty International (Amsterdam, 1992) (on file with authors).
141. The Working Group added "therefore, [the Working Group] approved the wording proposed by the delegation of Costa Rica in its observations on the matter (CP/CAJP-756/89, add. 6)." Progress Report of the Chairman of the Working Group to study the draft Inter-American Convention on the Forced Disappearance of Persons, at 12, O.A.S. Doc. Ser.G/CP/CAJP-866/92/Rev.2 (1992).
142. Analysis of the Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 43, at 3.
143. Observaciones I, supra note 76, add. 13 (Brazil).
144. Id. add. 5-a (Canada).
145. Id. 9-a (Chile).
146. Id. add. 10 (Estados Unidos).
147. OAS Convention, supra note 29, art. 8. Like the UN Declaration, paragraph 2 adds that "[t]he States parties shall ensure that the training of public law-enforcement personnel or officials includes the necessary education on the offense of forced disappearance of persons." Id. art 8, ¶ 2.
148. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, supra note 64. This instrument provides that no statute of limitations shall apply to: (1) war crimes as defined in the Charter of the International Military Tribunal of Nuremberg; (2) crimes against humanity as defined in the same instrument; (3) eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid; and (4) the crime of genocide. Id.
149. This is illustrated by the case of Klaus Barbie. Barbie committed numerous crimes against humanity while a member of the Nazi SS. After the Second World War he managed to flee to Bolivia, where he spent decades under different false identities. In 1982, after almost four decades, Bolivia finally extradited him to France, where Barbie was tried under a law establishing imprescriptibility for crimes against humanity. Analysis of the Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 43, at 13.
150. OAS Convention, supra note 29, art. 3.
151. UN Declaration, supra note 28, art. 17, ¶ 1.
152. Rodley, supra note 100, at 18.
153. UN Declaration, supra note 28, art. 17, ¶ 3.
154. Id, art. 17, ¶ 2. The International Covenant on Civil and Political Rights (ICCPR) provides that "[e]ach State Party to the present Covenant undertakes . . . [t]o ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity." International Covenant on Civil and Political Rights, art. 2, ¶ 3(a), adopted 16 Dec. 1966, 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp (No. 16), at 49, U.N. Doc. A/6316 (1966) [hereinafter ICCPR]. This compromise was adopted at the inter-sessional working group on the proposal of the United States' delegate John Crook, who was instrumental in bringing NGOs and state delegates together on a variety of issues.
155. Draft Declaration on the Protection of All Persons from Enforced or Involuntary Disappearance, supra note 31, art. 7. The Commission saw this as a logical consequence of crimes against humanity.
156. Progress Report of the Chairman of the Working Group to study the draft Inter-American Convention on the Forced Disappearance of Persons, supra note 109, at 11-12. See also Observaciones de los Gobiernos al Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas conforme a la resolución AG/Res. 1172 (XXII-0/92): México, OAS Doc. OEA/Ser.G/CP/CAJP-881/92 (1992). The Chairperson of the OAS working group described how this result was reached: one option was "not to accept statutes of limitations in the case of forced disappearances of persons"; a second, "[t]o accept them, but stipulating that the period of limitation be equal to that which applies to the gravest crime in the domestic laws of the country concerned." Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearances, supra note 56, at 27. He adds: "[a]fter analyzing alternative texts, the Working Group considered that it might be possible to include a provision combining both positions, in that it would be established that normally or ideally statutes of limitation would be unacceptable, but, should there be no other choice, the period of limitation would be as described above." Id.
157. Progress Report of the Chairman of the Working Group to study the draft Inter-American Convention on the Forced Disappearance of Persons, supra note 109, at 11-12. See also Observaciones de los Gobiernos al Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas conforme a la resolución AG/Res. 1172 (XXII-0/92): México, OAS Doc. OEA/Ser.G/CP/CAJP-881/92 (1992). The Chairperson of the OAS working group described how this result was reached: one option was "not to accept statutes of limitations in the case of forced disappearances of persons"; a second, "[t]o accept them, but stipulating that the period of limitation be equal to that which applies to the gravest crime in the domestic laws of the country concerned." Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearances, supra note 56, at 27. He adds: "[a]fter analyzing alternative texts, the Working Group considered that it might be possible to include a provision combining both positions, in that it would be established that normally or ideally statutes of limitation would be unacceptable, but, should there be no other choice, the period of limitation would be as described above." Id.
158. Progress Report of the Chairman of the Working Group to study the draft Inter-American Convention on the Forced Disappearance of Persons, supra note 109, at 11-12. See also Observaciones de los Gobiernos al Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas conforme a la resolución AG/Res. 1172 (XXII-0/92): México, OAS Doc. OEA/Ser.G/CP/CAJP-881/92 (1992). The Chairperson of the OAS working group described how this result was reached: one option was "not to accept statutes of limitations in the case of forced disappearances of persons"; a second, "[t]o accept them, but stipulating that the period of limitation be equal to that which applies to the gravest crime in the domestic laws of the country concerned." Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearances, supra note 56, at 27. He adds: "[a]fter analyzing alternative texts, the Working Group considered that it might be possible to include a provision combining both positions, in that it would be established that normally or ideally statutes of limitation would be unacceptable, but, should there be no other choice, the period of limitation would be as described above." Id.
159. OAS Convention, supra note 29, art. 7.
160. Id. This exception should be interpreted in a restrictive manner, since it is an exception to a norm protecting human rights and it should be understood that "fundamental" is equivalent to "constitutional."
161. See generally Kenneth C. Randall, Universal Jurisdiction, 66 TEX. L. REV. 785 (1988).
162. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §404 (1987). The Restatement specifically refers to "piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism." Id.
163. See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 Aug. 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31 (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 Aug. 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85 (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 Aug. 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135 (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 Aug. 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956); International Convention on the Suppression and Punishment of the Crime of Apartheid, adapted 30 Nov. 1973, G.A. Res. 3068 (XXVIII) (entered into force 18 July 1976), reprinted in 13 I.L.M. 50 (1974); Convention against Torture, supra note 84, art. 5; Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, E.S.C. Res. 65, Annex, 1989 U.N. ESCOR. Supp. (No. 1), at 52, U.N. Doc. E/1989/65 (1989) [hereinafter Principles on Extra-Legal Executions).
164. 1 LASSA OPPENHEIM, INTERNATIONAL LAW 609 (8th ed. 1955).
165. Randall, supra note 127, at 798.
166. Id. at 800.
167. Id. at 803.
168. Id. at 818 n.195, citing Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 565, T.I.A.S. No. 7570, 974 U.N.T.S. 177 (entered into force 26 Jan. 1973), reprinted in 10 I.L.M. 1151 (1971); Convention for the Suppression of Unlawful Seizure of Aircraft, 16 Dec. 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192, 860 U.N.T.S. 105 (entered into force 14 Oct. 1971), reprinted in 10 I.L.M. 133 (1971).
169. UN Declaration, supra note 28, art. 14 (emphasis added).
170. Id As Rodley has pointed out, "[t]he fact that it is a question for a civil authority is aimed at avoiding the practice in many countries of leaving such matters to military justice when, as is often the case, military personnel are the perpetrators." Rodley, supra note 100, at 14
171. OAS Convention, supra note 29, art. 4.
172. Id. The Inter-American Commission's draft established universal jurisdiction, including the extraditable nature of forced disappearance. The second draft left the issue between brackets. At Mexico's suggestion, however, Article 4 states that the Convention "does not authorize any State party to undertake, in the territory of another State party, the exercise of jurisdiction or the performance of functions that are placed within the exclusive purview of the authorities of that other Party by its domestic law." Id.; Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, supra note 56, at 24. Surely, Mexico had in mind the 1990 abduction of Humberto Alvarez Machain, a Mexican citizen, in Mexico by agents of the United States Drug Enforcement Administration.
173. OAS Convention, supra note 29, art. 5.
174. Id.
175. Id. art. 6.
176. In its General Comment 13 on Article 14 of the ICCPR, supra note 122, the Human Rights Committee commented on "the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice." Comment on Article 14, Gen. Comment 13, Hum. Rts. Comm., U.N. Doc. CCPR/21/Rev.1 (1989), reprinted in COMPILATION OF GENERAL COMMENTS AND GENERAL RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS TREATY BODIES, U.N. Doc. HRI/GEN/1 (1992), at 13.
177. In its General Comment 13 on Article 14 of the ICCPR, supra note 122, the Human Rights Committee commented on "the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice." Comment on Article 14, Gen. Comment 13, Hum. Rts. Comm., U.N. Doc. CCPR/21/Rev.1 (1989), reprinted in COMPILATION OF GENERAL COMMENTS AND GENERAL RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS TREATY BODIES, U.N. Doc. HRI/GEN/1 (1992), at 13.
178. UN Declaration, supra note 28, art. 16, ¶ 3. This point was successfully pressed for by the American Association of Jurists. See Working paper submitted by the Secretariat pursuant to Commission on Human Rights Resolution 1991/41, ¶ 62, U.N. Doc. E/CN.4/1991/WG.10/WP.1 (1991).
179. OAS Convention, supra note 29, art. 9.
180. Id.
181. UN Declaration, supra note 28, art. 16, ¶ 2; OAS Convention, supra note 29, art. 9.
182. UN Declaration, supra note 28, art. 5.
183. Id. art. 19. This provision is based on Article 14 of the UN Convention against Torture, supra note 84. The use of the term "victim" to signify only the disappeared person is rather restrictive, since the person's family are also victims within the meaning of Article 2 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, Annex, 40 U.N. GAOR Supp. (No. 53), at 214, U.N. Doc. A/40/53 (1985).
184. Velasquez Rodrfguez Case, supra note 20, ¶ 170.
185. Id. ¶ 174. In addition to international law principles, the Court's argument was based on Article 1, paragraph 1 of the American Convention on Human Rights. Id. ¶ 173.
186. The Universal Declaration on Human Rights provides in Article 14 that the right to asylum "may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations." Universal Declaration of Human Rights, supra note 60, art. 15.
187. The Declaration on Territorial Asylum, adopted 14 Dec. 1967, G.A. Res. 2312 (XXII). It states that "[t]he right to seek and to enjoy asylum may not be invoked by any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity." Id. art. 1.
188. Resolution on Principles of International Cooperation in the Detention, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes, G.A. Res. 3074, U.N. GAOR Supp. (No. 30), U.N. Doc. A/9030 (1973). This 1973 UN General Assembly Resolution also declares that "States shall not grant asylum to any persons with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity." Id. See also Jordan J. Paust, Universality and the Responsibility to Enforce International Criminal Law: No US Sanctuary for Alleged Nazi War Criminals, 11 Hous. J. INT'L L. 337, 338-39 (1989).
189. Resolution on Principles of International Cooperation in the Detention, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes, G.A. Res. 3074, U.N. GAOR Supp. (No. 30), U.N. Doc. A/9030 (1973). This 1973 UN General Assembly Resolution also declares that "States shall not grant asylum to any persons with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity." Id. See also Jordan J. Paust, Universality and the Responsibility to Enforce International Criminal Law: No US Sanctuary for Alleged Nazi War Criminals, 11 Hous. J. INT'L L. 337, 338-39 (1989).
190. Convention Relating to the Status of Refugees, art. 1(F), adopted 28 July 1951, 189 U.N.T.S. 137 (1951). Under this Convention, the provision of protection to those who qualify as refugees will not be applicable to any person with respect to whom there are serious reasons to believe that "[h]e has committed a crime against peace, a war crime, . . . a crime against humanity[, or] a serious non-political crime . . . or [that h]e has been guilty of acts contrary to the purpose and principles of the United Nations." Id. art 1(F).
191. UN Declaration, supra note 28, art. 15. France had objected to any restrictions to its constitutional right to asylum, preferring to be guided by the terms of the Refugee Convention.
192. See, e.g., Barbara Crosette, DNA reunites mom, son, kidnapped in El Salvador, MIAMI HERALD, 22 Jan. 1995, at 1.
193. UN Declaration, supra note 28, art. 20. The adoption section is carefully tailored: Considering the need to protect the best interests of children . . . there shall be an opportunity . . . for a review of the adoption of such children and, in particular, for annulment of any adoption which originated in enforced disappearance. Such adoption should, however, continue to be in force if consent is given, at the lime of the review by the child's closest relatives. Id. It also provides that the act of altering or suppressing documents attesting to a child's true identity shall constitute an extremely serious offence. Id. art. 20, ¶¶ 2-3.
194. OAS Convention, supra note 29, art. 12. The OAS Convention was watered down during the drafting process. The IACHR's draft had regulations close to those of the final UN text.
195. See Brody, supra note 54, at 381-82.
196. The words "habeas corpus" were removed from the final declaration by France, whose legal system has developed different remedies.
197. UN Declaration, supra note 28, art. 10; OAS Convention, supra note 29, art. 11.
198. Fourth Annual Report and List of States which, since 1 January 1985, Have Proclaimed, Extended or Terminated a State of Emergency, Annex 1, Guidelines for the Development of Legislation on States of Emergency, § 8(a), U.N. Doc. E/CN.4/Sub.2/1991/28 (1991). Special Rapporteur Leandro Despouy pointed out that "if it would be impossible to justify the derogation of a given provision in the International Covenant on Civil and Political Rights in terms of the requirement of strict necessity, this provision should be considered non-derogable even though it may not appear in the list set forth in Article 4.2." Id. See generally Rodley, supra note 100, at 39-40 (discussing treatment of prisoners).
199. Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 36 REV. INT'L COMM'N JURISTS 47 (1986). These were adopted in a meeting of experts convened by the ICJ in 1984. On the derogation of human rights, see also Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF RIGHTS 72 (Louis Henkin ed., 1981); Alexander Kiss, Commentary by the Rapporteur on Limitations Provisions, 7 HUM. RTS. Q. 15, 15-22 (1985); Bert B. Lockwood, Jr. et al., Working paper for the Committee of Experts on the Limitation Provisions of the International Covenant on Civil and Political Rights, 7 HUM. RTS. Q. 35 (1985).
200. Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 36 REV. INT'L COMM'N JURISTS 47 (1986). These were adopted in a meeting of experts convened by the ICJ in 1984. On the derogation of human rights, see also Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF RIGHTS 72 (Louis Henkin ed., 1981); Alexander Kiss, Commentary by the Rapporteur on Limitations Provisions, 7 HUM. RTS. Q. 15, 15-22 (1985); Bert B. Lockwood, Jr. et al., Working paper for the Committee of Experts on the Limitation Provisions of the International Covenant on Civil and Political Rights, 7 HUM. RTS. Q. 35 (1985).
201. Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 36 REV. INT'L COMM'N JURISTS 47 (1986). These were adopted in a meeting of experts convened by the ICJ in 1984. On the derogation of human rights, see also Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF RIGHTS 72 (Louis Henkin ed., 1981); Alexander Kiss, Commentary by the Rapporteur on Limitations Provisions, 7 HUM. RTS. Q. 15, 15-22 (1985); Bert B. Lockwood, Jr. et al., Working paper for the Committee of Experts on the Limitation Provisions of the International Covenant on Civil and Political Rights, 7 HUM. RTS. Q. 35 (1985).
202. Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 36 REV. INT'L COMM'N JURISTS 47 (1986). These were adopted in a meeting of experts convened by the ICJ in 1984. On the derogation of human rights, see also Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF RIGHTS 72 (Louis Henkin ed., 1981); Alexander Kiss, Commentary by the Rapporteur on Limitations Provisions, 7 HUM. RTS. Q. 15, 15-22 (1985); Bert B. Lockwood, Jr. et al., Working paper for the Committee of Experts on the Limitation Provisions of the International Covenant on Civil and Political Rights, 7 HUM. RTS. Q. 35 (1985).
203. See Habeas Corpus in Emergency Situations, Advisory Opinion OC-8/87 of 30 Jan. 1987, Ser. A, No. 8, Inter-Am. Ct. H.R. 17 (app. II), OAS Doc. OEA/Ser.L/V/III.17 (1987).
204. Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, supra note 56, at 30. See also Judicial Guarantees in States of Emergency, Advisory Opinion OC-9/67 of 6 Oct. 1987, Ser. A, No. 9, Inter-Am. Ct. H.R. 13 (app.l), OAS Doc. OEA/Ser.L/V/III.19 (1988).
205. Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, supra note 56, at 30. See also Judicial Guarantees in States of Emergency, Advisory Opinion OC-9/67 of 6 Oct. 1987, Ser. A, No. 9, Inter-Am. Ct. H.R. 13 (app.l), OAS Doc. OEA/Ser.L/V/III.19 (1988).
206. UN Declaration, supra note 28, art. 7; OAS Convention, supra note 29, art. 10.
207. Report of the Working Group on Enforced or Involuntary Disappearances, ¶ 346, U.N. Doc. E/CN.4/1990/613 (1990).
208. President, IACHR, quoted in Habeas Corpus in Emergency Situations, supra note 164, ¶ 36.
209. OAS Convention, supra note 29, art. 10.
210. UN Declaration, supra note 28, art. 9, ¶ 2. The phrase "competent independent authorities," was suggested but not adopted. Together with the word "national," the UN drafters added that "any other competent authority entitled under law of the State or by any international legal instrument to which the State is a party may also have access to such places." Id. art. 9, ¶ 3.
211. Id. art. 10, ¶ 1; OAS Convention, supra note 29, art. 11.
212. See ICCPR, supra note 122, art. 9, ¶ 3.; American Convention on Human Rights, supra note 60, art. 7, ¶ 5.
213. UN Declaration, supra note 28, art. 10, ¶ 2. This formulation was developed in response to the disappearance by Chinese authorities of Tibetan monks and nuns who had no direct family members. This information must be given out unless the detainee has "manifested" a contrary wish. Id. The highlighted word was chosen to replace "expressed" in order to place the burden on the authorities.
214. Walter Albán Peralta, Identifying Victims and Searching for Disappeared Persons, in JUSTICE, NOT IMPUNITY 281, 285 (Commission nationale consultative des Droits de l'Homme & International Commission of Jurists eds., 1993).
215. Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, supra note 56, at 31.
216. OAS Convention, supra note 29, art. 11. The first draft called for public and centralized registers, while the second draft was watered down to read: "The states parties, insofar as possible, shall establish and maintain up-to-date registries of their detainees, and, when their internal laws so provide, shall make them available to family members, magistrates, attorneys, and other authorities." The NGOs successfully lobbied to drop any conditional character from this provision, although the OAS Convention does not require a centralized register, but rather "registers."
217. UN Declaration, supra note 28, art. 10, ¶ 3 (emphasis added).
218. Id.
219. See Analysis of the Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 51. Regarding Canada's proposals, see Observaciones I, supra note 76, add. 5-a (Canada).
220. See Analysis of the Draft Inter-American Convention on the Forced Disappearance of Persons, supra note 51. Regarding Canada's proposals, see Observaciones I, supra note 76, add. 5-a (Canada).
221. UN Declaration, supra note 28, art. 11.
222. Id. art. 12, ¶ 1. The additional qualifier "to the extent possible," inserted by Sub-Commission working group Chairman Alfonso Martínez, was removed at the inter-governmental working session.
223. Id. art. 12, ¶ 2. "[A] strong chain of command is a basic feature of police and military forces. The principle of chain-of-command responsibility to prevent human rights violations is a means of counteracting" claims that superiors were ignorant of or could not control their subordinates' activities. "DISAPPEARANCES" AND POLITICAL KILLINGS, supra note 53, at 112-13.
224. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452 (XXX), Annex, 30 U.N. GAOR Supp. (No. 34), at 91, U.N. Doc. A/10034 (1975).
225. Principles on Extra-Legal Executions, supra note 129.
226. UN Declaration, supra note 28, art. 13, ¶ 1.
227. Id. art. 13, ¶ 2. This provision, as well as paragraphs 3 and 4 of Article 13, are based on the Principles on Extra-Legal Executions, supra note 129.
228. Id. art. 13, ¶ 3. This paragraph is taken from Article 13 of the Convention Against Torture and was included at the suggestion of the WGEID. Convention against Torture, supra note 84, art. 13.
229. UN Declaration, supra note 28, art. 13, ¶ 4. This represents a compromise between the provision in the Body of Principles which had been criticized as "perverse" by Amnesty International, and the Principles on Extra-Legal Executions which contain no such limitation.
230. Id. art. 13, ¶ 5.
231. Id. art. 13, ¶ 6.
232. Velasquez Rodriguez Case, supra note 20, ¶ 181.
233. UN Declaration, supra note 28, art. 16, ¶ 1.
234. Draft Inter-American Convention of Forced Disappearance of Persons, supra note 46, art. 23.
235. Id art. 24, ¶ 1.
236. Id. art. 25, ¶ 3.
237. OAS Convention, supra note 29, art. 13.
238. Id. art. 14 (emphasis added).
239. The report of the Working Group's Chairperson discusses this matter: There was a long discussion about the word "confidentially." Some delegations said it was necessary to keep that terminology since it was a question of a communication before the petition was accepted. Hence, to protect the states, it would be preferable not to publicize that communication without having checked the facts. Furthermore, other delegations said that the Commission in fact kept its work confidential until a report was prepared and a decision taken as to whether or not it should be released. Thus, clarification of this issue was unnecessary and they preferred to eliminate the term. In the end, a compromise formula was accepted by the Working Group. It is understood that both Article XIII and Article XIV must be interpreted in a manner compatible with the instruments mentioned in Article XV. Report of the Permanent Council on the Draft Inter-American Convention on Forced Disappearance of Persons, supra note 56, at 33.
240. OAS Convention, supra note 29, art. 15.
241. Note by the Secretary-General on Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, ¶ 10, U.N. Doc. E/CN.4/1993/35 (1993).
242. See, e.g., Report of the Working Group on Enforced or Involuntary Disappearances, U.N. Doc. E/CN.4/1994/26 (1994).
243. Id. ¶ 86(f).
244. Id.
245. Id. ¶ 86(b).
246. Id. ¶ 86(e).
247. Id. ¶ 86(g).
248. Id.
249. Id. ¶ 86(h).
250. Id. ¶ 86(c).
251. Id.
252. Report of the Working Group on Enforced or Involuntary Disappearances, ¶ 53, U.N. Doc. E/CN.4/1995/36 (1995).
253. Id.
254. Id. ¶ 54.
255. Report of the Working Group on Enforced or Involuntary Disappearances, supra note 1, ¶ 46.
256. OAS Convention, supra note 29, art. 8.
257. Several NGOs have also begun work towards an international convention on disappearances. In a process reminiscent of the drafting of the UN Declaration, Amnesty Internationl convened an expert meeting in 1966 which produced a first draft that was submitted to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights. See Louis Joinet, Draft UN Commission on Human Rights, International Convention on the Prevention and Repression of Forced Disappearances, U.N. Doc.E/CN.4/Sub.2/WG.1/CRP.2 (1996).