In May 2011, the Uruguayan Supreme Court ruled that two military officials could not be prosecuted for “enforced disappearances” during the 1970s because the act was not recognized as a crime under Uruguayan domestic law until 2006. According to Human Rights Watch, this ruling directly violates the International Convention for the Protection of All Persons for Enforced Disappearances, which states that a country has an obligation to investigate and prosecute a crime regardless of when the crime was committed. Uruguay ratified this treaty in 2009 and has consequently violated international law. Since “enforced disappearances” amount to a crime against humanity, this ruling has broad global implications on the incorporation of international law on domestic cases.
Uruguay should prosecute and punish those responsible for serious human rights abuses, including enforced disappearances, committed during the military dictatorship, Human Rights Watch said today.
On May 6, 2011, the Supreme Court of Uruguay ruled that two military officials could not be charged with enforced disappearances committed during Uruguay's dictatorship (1973-1985) because the crime was not incorporated into Uruguay's domestic law until 2006, long after the alleged crimes occurred. The two officers were sentenced to 25 years in prison for the "aggravated murder" of 28 people. On May 31, the court rejected an appeal to clarify the scope of its May 6 ruling.
"Uruguay should take immediate steps to hold those responsible for enforced disappearances to account, whether or not the crime was on the books in Uruguay in the late 1970s," said José Miguel Vivanco, Americas Director at Human Rights Watch. "Victims and their families have already waited for far too long for justice."
The Supreme Court argued that due to the "principle of legality" - which states that laws may not be applied retroactively to the detriment of the accused - the 2006 law incorporating the crime of enforced disappearance into domestic law is not applicable to the cases from the dictatorship. If the abuses committed during that time are considered common crimes (instead of crimes against humanity), statutes of limitations would apply to these cases.
This was addressed by the Inter American Court of Human Rights in February 2011. In a case against Uruguay, the court ruled that cases of alleged enforced disappearances should be investigated as such. According to the court, since enforced disappearances are continuous crimes, applying the 2006 law to these cases is not a retroactive application of criminal law. The court also urged Uruguay not to apply statutes of limitations or "any other" norm limiting criminal responsibility, which would obstruct these criminal investigations.
As a party to the International Convention for the Protection of All Persons from Enforced Disappearance, ratified by Uruguay in 2009, Uruguay also has specific obligations to ensure that, whenever an offense occurs, there is effective investigation and prosecution, and a proper remedy for the victim. Uruguay did not include any reservations regarding the application of the Convention to outstanding, continuous cases of disappearances, when ratifying the treaty.
Moreover, the prohibition on retroactive application of the penal law is not intended to prevent the punishment of acts that were recognized as criminal under international law at the time that they were committed, Human Rights Watch said. Article 15 of the International Covenant on Civil and Political Rights (ICCPR), which Uruguay ratified in 1970, notes specifically that "[n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."
The crime of enforced disappearance has been recognized as such in international law since at least the beginning of the 1980s, and before that its constituent elements were universally recognized as violations of international law:
- The codification process of the prohibition on enforced disappearances in international human rights instruments began with a General Assembly resolution in 1978, that recognizes that involuntary or enforced disappearances are violations of existing protections concerning the right to life, freedom from torture, freedom from arbitrary arrest and detention.
- As a result of the 1978 General Assembly resolution, the UN Working Group on Enforced or Involuntary Disappearances was established in February 1980. Following that, throughout the 1980s, states regionally and at the UN began negotiations for a specific instrument to address the crime of enforced disappearances. At no stage was the issue of whether enforced disappearances were illegal under international law challenged, only whether an instrument was necessary since the constituent acts were already outlawed.
- In the case of Velásquez Rodríguez, regarding a disappearance that had occurred in 1981, the Inter-American Court clarified the scope of the crime under international law at the time, the violations of human rights that were involved, and the duty to investigate and prosecute under domestic law.
- When the Declaration on the Protection of all Persons from Enforced Disappearance was adopted by the General Assembly in December 1992, it explicitly stated that the acts which comprise enforced disappearance already constituted a grave and flagrant violation of the prohibitions found in the Universal Declaration of Human Rights, the ICCPR, and the Convention Against Torture, regarding the right to life, the right to liberty and security of the person, the right not to be subjected to torture and the right to recognition as a person before the law.
- The criminal status of enforced disappearances also has a long history under international law as a war crime and crime against humanity. Significantly, the International Committee of the Red Cross has included the prohibition on enforced disappearances in its most recent codification of customary norms for both internal and international conflicts.
Moreover, statutes of limitations should not be interpreted to bar prosecution of crimes against humanity. In September 2001, Uruguay ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. The Inter-American Court of Human Rights has ruled that "all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible [...], because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law."
On May 20, the Chamber of Deputies upheld Uruguay's 1986 amnesty law - the Law on the Expiration of the Punitive Claims of the State - which protects police and military personnel from prosecution for crimes during the military dictatorship. In two plebiscites, in 1989 and 2009, over 50 percent of Uruguayan voters rejected revisiting the amnesty legislation.
"Since Parliament has failed to annul the amnesty law, it is up to prosecutors and courts to ensure Uruguay fulfills its international obligation to bring those responsible to justice," said Vivanco.
