Preamble

i. The Working Group on Enforced or Involuntary Disappearances has long been concerned with the effects of legal measures that result in amnesties and pardons, as well as mitigating measures or similar provisions that lead to impunity for gross violations of human rights, including disappearance. The 1994 WGEID Report (E/CN.4/1994/26) specifically referred to the question of impunity, reminding States of their obligations not to make or enact laws that would in effect give immunity to perpetrators of disappearances. Subsequent reports have repeated this concern.

ii. The Working Group has followed closely the development of international human rights law regarding impunity. The Working Group bears in mind the contents of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and recalls the provisions of Article 15 (2) of the International Covenant on Civil and Political Rights, the several decisions of the Human Rights Committee and of the Inter-American Commission and Court of Human Rights on the question of amnesties, and the reports and independent studies on the question of impunity, prepared for the United Nations Human Rights system by independent experts.

iii. In its resolutions, particularly 57/215, entitled “Question of enforced or involuntary disappearances”, the General Assembly encouraged the Working Group to “continue to consider the question of impunity, in the light of the relevant provisions of the Declaration and of the final reports submitted by the special rapporteurs appointed by the Subcommission”. The WGEID decided at its 74th session that it would examine issues related to amnesties and impunity at its following sessions.

iv. The Working Group has decided to issue the following general comment on what it determines to be the proper interpretation of Article 18 of the Declaration on the Protection of all Persons from Enforced Disappearance, which reads as follows:

Article 18 1. Persons who have or are alleged to have committed offences referred to in Article 4, paragraph 1, above, shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction. 2. In the exercise of the right of pardon, the extreme seriousness of acts of enforced disappearance shall be taken into account.

General Comment

1. Article 18 of the Declaration on the Protection of all Persons from Enforced Disappearance (hereafter referred to as the “Declaration”) should be interpreted in conjunction with other Articles of the Declaration. Therefore, States should refrain from making or enacting amnesty laws that would exempt the perpetrators of enforced disappearance from criminal proceedings and sanctions, and also prevent the proper application and implementation of other provisions of the Declaration.

2. An amnesty law should be considered as being contrary to the provisions of the Declaration even where endorsed by a referendum or similar consultation procedure, if directly or indirectly, as a consequence of its application or implementation, it results in any or all of the following:

(a) Ending the State’s obligations to investigate, prosecute and punish those responsible for disappearances, as provided for in Articles 4, 13, 14 and 16 of the Declaration.

(b) Preventing, impeding or hindering the granting of adequate indemnification, rehabilitation, compensation and reparation as a result of the enforced disappearances, as provided for in Article 19 of the Declaration.

(c) Concealing the names of the perpetrators of disappearance, thereby violating the right to truth and information, which can be inferred from Articles 4.2 and 9 of the Declaration.

(d) Exonerating the perpetrators of disappearance, treating them as if they had not committed such an act, and therefore have no obligation to indemnify the victim, in contravention of Articles 4 and 18 of the Declaration.

(e) Dismissing criminal proceedings or closing investigations against alleged perpetrators of disappearances or imposing insignificant sanctions in order to give the perpetrators the benefit of the right not to be tried twice for the same crime which would in fact result in impunity, thereby violating Article 4.1 of the Declaration.

3. The following are examples of “similar measures” which, even if not contained in an amnesty law, should be considered contrary to the Declaration:

(a) Suspension or cessation of an investigation into disappearance on the basis of failure or inability to identify the possible perpetrators, in contravention of Article 13.6 of the Declaration.

(b) Making the victim’s right to truth, information, redress, reparation, rehabilitation, or compensation conditional on the withdrawal of charges or the granting of pardon to the alleged perpetrators of the disappearance.

(c) Application of statutory limitations that are short or that commence even as the crime of disappearance is still ongoing, given the continuing nature of the crime, thereby breaching Articles 4 and 17 of the Declaration.

(d) Application of any statutory limitation when the practice of disappearance constitutes a crime against humanity.

(e) Putting perpetrators on trial as part of a scheme to acquit them or impose insignificant sanctions, which would in fact amount to impunity.

4. Notwithstanding the above, Article 18 of the Declaration, when construed together with other provisions of the Declaration, allows limited and exceptional measures that directly lead to the prevention and termination of disappearances, as provided for in Article 3 of the Declaration, even if, prima facie, these measures could appear to have the effect of an amnesty law or similar measure that might result in impunity.

5. Indeed, in States where systematic or massive violations of human rights have occurred as a result of internal armed conflict or political repression, legislative measures that could lead to finding the truth and reconciliation through pardon, might be the only option to terminate or prevent disappearances.

6. Although mitigating circumstances may, at first glance appear to amount to measures that could lead to impunity, they are allowed under Article 4.2 of the Declaration in two specific cases, i.e. when they lead to bringing the victims forward alive or to obtaining information that would contribute to establishing the fate of the disappeared person.

7. Also, the granting of pardon is expressly permitted under Article 18.2 of the Declaration, as long as in its exercise the extreme seriousness of acts of disappearance is taken into account.

8. Therefore, in exceptional circumstances, when States consider it necessary to enact laws aimed to elucidate the truth and to terminate the practice of enforced disappearance, such laws may be compatible with the Declaration as long as such laws are within the following limits:

(a) Criminal sanctions should not be completely eliminated, even if imprisonment is excluded by the law. Within the framework of pardon or of the application of mitigating measures, reasonable alternative criminal sanctions (i.e. payment of compensation, community work, etc.) should always be applicable to the persons who would otherwise have been subject to imprisonment for having perpetrated the crime of disappearance.

(b) Pardon should only be granted after a genuine peace process or bona fide negotiations with the victims have been carried out, resulting in apologies, and expressions of regret from the State or the perpetrators, and guarantees to prevent disappearances in the future.

(c) Perpetrators of disappearances shall not benefit from such laws if the State has not fulfilled its obligations to: investigate the relevant circumstances surrounding disappearances, identify and detain the perpetrators, and ensure the satisfaction of the right to justice, truth, information, redress, reparation, rehabilitation and compensation to the victims. Truth and reconciliation procedures should not prevent the parallel functioning of special prosecution and investigation procedures regarding disappearances.

(d) In States that have gone through deep internal conflicts, criminal investigations and prosecutions may not be displaced by, but can run parallel to, carefully designed truth and reconciliation processes.

(e) The law should clearly aim, with appropriate implementing mechanisms, to effectively achieve genuine and sustainable peace and to grant the victims guarantees of termination and no-repetition of the practice of disappearance.