Table of contents
8.1.1. Evidence of the direct participation of a State in the arrest/detention/abduction.
P.38. Evidence that the arrest/detention/abduction was ordered by the government.
P.39. Evidence of the participation of state agents in the arrest/detention/abduction.
P.39.1. Evidence of the participation of a member of government.
P.39.2. Evidence of the participation of a prison guard.
P.39.3. Evidence of the participation of the military forces.
P.39.4. Evidence of the participation of a sub-group of the Army.
P.39.5. Evidence of the participation of the police force.
P.39.6. Evidence of the participation of gendarmes.
8.1.2. Evidence of authorization given by a State for the arrest/detention/abduction.
P.40. Evidence that government agents did not interfere with the kidnapping of one or more persons.
8.1.3. Evidence of the support of the State for the arrest/detention/abduction.
P.41. Evidence of government agents facilitating the arrest/detention/abduction.
8.1.4. Evidence of the acquiescence of a State with the arrest/detention/abduction.
P.42. Evidence of the acquiescence of a State in the arrest/detention/abduction.
P.43. Not sufficient : evidence of a failure to investigate the case.
Element
Element 6 constitutes the circumstantial element accompanying Elements 3(a), 4(a) and 5(a). According to Machteld Boot, "the perpetrator could be a member of government, a police officer, a prison guard, but also private individuals. The scope of possible perpetrators is not limited to persons exercising particular functions, nor does the provision require an official capacity. A perpetrator must, however, have acted either on behalf of, or with the authorization, support, or acquiescence of, a state or a political organization" (in Genocide, Crimes Against Humanity, War Crimes, p. 527).
The issue of proving the involvement of a State in the crime of enforced disappearance has been a challenge for most complainants in human rights tribunals. For this reason judges from these tribunals choose to have recourse to circumstantial evidence and logical inferences. As pointed out in the
,para. 130):"130. According to the jurisprudence of this Court, forced disappearance frequently involves secret execution [of those detained], without trial, following by concealment of the corpse in order to eliminate any material evidence of the crime and to ensure the impunity of those responsible85. Due to the nature of the phenomenon and its probative difficulties, the Court has established that if it has been proved that the State promotes or tolerates the practice of forced disappearance of persons, and the case of a specific person can be linked to this practice, either by circumstantial or indirect evidence86, or both, or by pertinent logical inference87, then this specific disappearance may be considered to have been proven88."
"85 Cf. God?nez Cruz Case, supra note 53, para. 165; and Velásquez Rodr?guez Case, supra note 53, para. 157.
86 Cf. Villagrán Morales et al. Case (the "Street Children" Case), supra note 52, para. 69; Castillo Petruzzi et al. Case, supra note 50, para. 62; Paniagua Morales et al. Case, supra note 50, para. 72; Blake Case, supra note 52, paras. 47 and 49; Caso Gangaram Panday. Judgment of January 21, 1994. Series C No. 16, para. 49; Fairén Garbi and Sol?s Corrales Case, supra note 53, paras. 130-133; God?nez Cruz Case, supra note 53, paras. 133-136; and Velásquez Rodr?guez Case, supra note 53, paras. 127-130.
87 Cf. Blake Case, supra note 52, para. 49.
88 Cf. Similarly, Blake Case, supra note 52, para. 49; God?nez Cruz Case, supra note 53, paras. 127 and 130; and Velásquez Rodr?guez Case, supra note 53, para. 124."
8.1.1. Evidence of the direct participation of a State in the arrest/detention/abduction.
P.38. Evidence that the arrest/detention/abduction was ordered by the government.
A. Legal source/authority and evidence:
, para. 76:"76. The record contains testimony of members of the Legislative Assembly of Honduras, Honduran lawyers, persons who were at one time disappeared, and relatives of disappeared persons, which purports to show that in the period in which the events took place, the legal remedies in Honduras were ineffective in obtaining the liberty of victims of a practice of enforced or involuntary disappearances, ordered or tolerated by the Government. The record also contains dozens of newspaper clippings which allude to the same practice. According to that evidence, from 1981 to 1984 more than one hundred persons were illegally detained, may of whom never reappeared, and, in general, the legal remedies which the Government claimed were available to the victims were ineffective."
P.39. Evidence of the participation of state agents in the arrest/detention/abduction.
A. Legal source/authority and evidence:
:"153 ( ) ii. The arms employed were reserved for the official use of the military and police, and the vehicles used had tinted glass, which requires special official authorization. In some cases, Government agents carried out the detentions openly and without any pretense or disguise; in others, government agents had cleared the areas where the kidnappings were to take place and, on at least one occasion, when government agents stopped the kidnappers they were allowed to continue freely on their way after showing their identification (testimony of Miguel Angel Pav?n Salazar, Ram?n Custodio L?pez and Florencio Caballero);"
P.39.1. Evidence of the participation of a member of government.
A. Legal source/authority and evidence:
Machteld Boot, Genocide, Crimes Against Humanity, War Crimes, p. 527:
"The perpetrator could be a member of government, [ ]."
P.39.2. Evidence of the participation of a prison guard.
A. Legal source/authority and evidence:
Machteld Boot, Genocide, Crimes Against Humanity, War Crimes, p. 527:
"The perpetrator could be [ ] a prison guard [ ]."
P.39.3. Evidence of the participation of the military forces.
A. Legal source/authority and evidence:
:"132. This Court has considered proven, on the basis of both the circumstantial evidence and the direct evidence, that, as the Commission has indicated, at the time of the facts of the case, the Army had a practice of capturing guerrillas, detaining them clandestinely without advising the competent, independent and impartial judicial authority, physically and mentally torturing them in order to obtain information and, eventually, killing them (supra 121f). It can also be asserted, according to the evidence submitted in this case, that the disappearance of Efra?n Bámaca Velásquez is related to this practice (supra 121 h, i, j, k, l), and therefore the Court deems it to have been proved.
133. There is sufficient evidence to conclude that the facts indicated in relation to Efra?n Bámaca Velásquez were carried out by persons who acted in their capacity as agents of the State, which involves the international responsibility of Guatemala as State Party to the Convention."
"143. This Court has established as proven in the case being examined, that Efra?n Bámaca Velásquez was detained by the Guatemalan army in clandestine detention centers for at least four months, thus violating Article 7 of the Convention (supra 121 I, j, k, l)."
Caballero-Delgado and Santana v. Columbia, Petition No. 10.319, Judgement (Merits), Inter- American Court of Human Rights, 8 December 1995, para. 53. b.:
"53.( ) b. there exists sufficient evidence to infer the reasonable conclusion that the detention and the disappearance of Isidro Caballero-Delgado and Mar?a del Carmen Santana were carried out by persons who belonged to the Colombian Army and by several civilians who collaborated with them (testimony of Rosa Delia Valderrama, the minor Sobeida Quintero, Elida González-Vergel, Javier Páez, and the declarations of Gonzalo Arias-Alturo)."
God?nez-Cruz v. Honduras, Petition No. 8097, Judgment (Merits), Inter-American Court of Human Rights, 20 January 1989, paras. 89 91, 153.c.:
"89. The Commission presented testimony and documentary evidence to show that there were many kidnappings and disappearances in Honduras from 1981 to 1984 and that those acts were attributable to the Armed Forces of Honduras (hereinafter "Armed Forces"), which was able to rely at least on the tolerance of the Government. Three officers of the Armed Forces testified on this subject at the request of the Court.
90. Various witnesses testified that they were kidnapped, imprisoned in clandestine jails and tortured by members of the Armed Forces (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Virgilio Car?as, Milton Jiménez Puerto, René Velásquez D?az and Leopoldo Aguilar Villalobos).
91. [ ] She stated that thirty-six days after her detention she was moved to a place near Tegucigalpa, where she saw military officers (one of whom was Second Lt. Marco Tulio Regalado Hernández), papers with an Army letterhead, and Armed Forces graduation rings."
"153. [ ]c. It was public and notorious knowledge in Honduras that the kidnappings were carried out by military personnel or the police, or persons acting under their orders (testimony of Miguel Angel Pav?n Salazar, Ram?n Custodio L?pez, Efra?n D?az Arrivillaga, Florencio Caballero and press clippings)."
, paras. 82, 119(a), 147(c):
"82. The Commission presented testimony and documentary evidence to show that there were many kidnappings and disappearances in Honduras from 1981 to 1984 and that those acts were attributable to the Armed Forces of Honduras (hereinafter "Armed Forces"), which was able to rely at least on the tolerance of the Government. Three officers of the Armed Forces testified on this subject at the request of the Court."
"119(a). The testimony and documentary evidence, corroborated by press clippings, presented by the Commission, tend to show: a. that there existed in Honduras from 1981 to 1984 a systematic and selective practice of disappearances carried out with the assistance or tolerance of the government."
"147 (c). It was public and notorious knowledge in Honduras that the kidnappings were carried out by military personnel or the police, or persons acting under their orders (testimony of Miguel Angel Pav?n Salazar, Ram?n Custodio L?pez, Efra?n D?az Arrivillaga, Florencio Caballero and press clippings)."
Celis Laureano v. Peru, Human Rights Committee, Communication No 540/1993, 25 March 1996, CCPR/C/56/D/540/1993, para. 2.4:
"2.4 On 13 August 1992, at approximately 1 a.m., Ms. Laureano was abducted from the house where she and the author were staying. The author testified that two of the kidnappers entered the building via the roof, while the others entered through the front door. The men were masked, but the author observed that one of them wore a military uniform, and that there were other characteristics, e.g., the type of their firearms and the make of the van into which his granddaughter was pulled, which indicated that the kidnappers belonged to the military and/or special police forces."
Commission on Human Rights, "Civil and Political Rights, Including the Questions of: Disappearances and Summary Executions. Question of Enforced or involuntary disappearances. Report of the Working Group on Enforced or Involuntary Disappearances. Addendum. Mission to Nepal. 6-14 December 2004, E/CN.4/2005/65/Add.1, 28 January 2005, para. 27:
"27. In many of the cases attributed to the security forces, and especially the army, a clear pattern has emerged. A person suspected of Maoist sympathies, or simply of having contact with Maoists, is seized by a large group of known military personnel out of patrol. He or she is blindfolded and his or her hands tied behind the back. The victim is put into a military vehicle and taken away. The security forces often appear in plain clothes so that no personal names and/or unit names are visible. Very commonly, the victim is later seen being driven around in an army vehicle, reportedly to point out the homes of other "suspects". In almost all cases, the victim is held incommunicado in army barracks, with no access to family or legal counsel."
P.39.4. Evidence of the participation of a sub-group of the Army.
A. Legal source/authority and evidence:
:"76. On the basis of the evidence examined and bearing in mind the arguments of the parties, the Court considers it proven that, at the time the events in this case occurred, the civil patrols enjoyed an institutional relationship with the Army, performed activities in support of the armed forces' functions, and, moreover, received resources, weapons, training and direct orders from the Guatemalan Army and operated under its supervision. A number of human rights violations, including summary and extrajudicial executions and forced disappearances of persons, have been attributed to those patrols (supra 52.(p))."
"78. As a consequence, the Court declares that the acquiescence of the State of Guatemala in the perpetration of such activities by the civil patrols indicates that those patrols should be deemed to be agents of the State and that the actions they perpetrated should therefore be imputable to the State."
P.39.5. Evidence of the participation of the police force.
A. Legal source/authority and evidence:
Garrido and Baigorria v. Argentina, Complaint No. 11.009, Judgment (Merits), Inter-American Court of Human Rights, 2 February 1996, para. 10:
"10. The men were questioned (or detained) by at least four police agents wearing uniforms of the mobile division of the Mendoza Police, who were traveling in two cars belonging to that security force."
Quinteros Almeida v. Uruguay, Human Rights Committee, Communication No. 107/1981, 21 July 1983, para. 12.3:
"12.3 The Human Rights Committee, accordingly, finds that, on 28 June 1976, Elena Quinteros was arrested on the grounds of the Embassy of Venezuela at Montevideo by at least one member of the Uruguayan police force and that in August 1976 she was held in a military detention centre in Uruguay where she was subjected to torture."
Machteld Boot, Genocide, Crimes Against Humanity, War Crimes, p. 527:
"The perpetrator could be [ ] a police officer, [ ]".
P.39.6. Evidence of the participation of gendarmes.
A. Legal source/authority and evidence:
Taş v. Turkey, Application no. 24396/94, Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 14 November 2000,para. 85:
"85. The Court notes that its reasoning and findings in relation to Article 2 above leave no doubt that Muhsin Tass detention was in breach of Article 5. He was apprehended on 14 August 1993 by gendarmes in Cizre and transferred the same day to a place of detention in Sirnak."
8.1.2. Evidence of authorization given by a State for the arrest/detention/abduction.
P.40. Evidence that government agents did not interfere with the kidnapping of one or more persons.
:"153[ ] ii. [ ] on at least one occasion, when government agents stopped the kidnappers they were allowed to continue freely on their way after showing their identification (testimony of Miguel Angel Pav?n Salazar, Ram?n Custodio L?pez and Florencio Caballero);"
8.1.3. Evidence of the support of the State for the arrest/detention/abduction.
P.41. Evidence of government agents facilitating the arrest/detention/abduction.
A. Legal source/authority and evidence:
:"153[ ] ii. The arms employed were reserved for the official use of the military and police, and the vehicles used had tinted glass, which requires special official authorization. In some cases, Government agents carried out the detentions openly and without any pretense or disguise; in others, government agents had cleared the areas where the kidnappings were to take place and, on at least one occasion, when government agents stopped the kidnappers they were allowed to continue freely on their way after showing their identification (testimony of Miguel Angel Pav?n Salazar, Ram?n Custodio L?pez and Florencio Caballero);"
8.1.4. Evidence of the acquiescence of a State with the arrest/detention/abduction.
P.42. Evidence of the acquiescence of a State in the arrest/detention/abduction.
A. Legal source/authority and evidence:
, paras. 76, 82, 119(a):"76. The record contains testimony of members of the Legislative Assembly of Honduras, Honduran lawyers, persons who were at one time disappeared, and relatives of disappeared persons, which purports to show that in the period in which the events took place, the legal remedies in Honduras were ineffective in obtaining the liberty of victims of a practice of enforced or involuntary disappearances, ordered or tolerated by the Government. The record also contains dozens of newspaper clippings which allude to the same practice. According to that evidence, from 1981 to 1984 more than one hundred persons were illegally detained, may of whom never reappeared, and, in general, the legal remedies which the Government claimed were available to the victims were ineffective."
"82. The Commission presented testimony and documentary evidence to show that there were many kidnappings and disappearances in Honduras from 1981 to 1984 and that those acts were attributable to the Armed Forces of Honduras (hereinafter "Armed Forces"), which was able to rely at least on the tolerance of the Government. Three officers of the Armed Forces testified on this subject at the request of the Court."
"119 (a). The testimony and documentary evidence, corroborated by press clippings, presented by the Commission, tend to show: a. that there existed in Honduras from 1981 to 1984 a systematic and selective practice of disappearances carried out with the assistance or tolerance of the government."
"The Commission considers that forced disappearance has occurred when a person is arrested by State agents or with the acquiescence of same, with or without orders from a competent authority, and this arrest is then denied and no information is made available as to the destination or whereabouts of the detainee."
P.43. Not sufficient : evidence of a failure to investigate the case.
A. Legal source/authority and evidence:
, para. 159 :"159. Although the Government of Honduras has incurred in many contradictions, the failure to investigate this case, which it explains by virtue of the Guatemalan certificate that those disappeared had entered in its territory, is insufficient --in the absence of other evidenceto create a legal presumption that the Honduran Government is responsible for those disappearances."
The expansion of the definition of enforced disappearance to include "the authorization, support or acquiescence [ ] of a political organization" is, according to Christopher K. Hall, a "major departure from existing international law" since under international law this crime can only be committed by State agents or with their consent or acquiescence. Hence, this new addition will "require further clarification in the light of the requirement that those carrying out the enforced disappearance must intend to remove the victims from the protection of the law". (Christopher K. Hall in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 7, para. 124).
Since the inclusion of the participation of a political organization is a novelty in international law, the ICC judges will develop the jurisprudence on this question.
