had to be halted amid criticism for a lack of cultural
appropriateness and doubts about the forensic methodology employed.320 The 2008 Rwandan law that all
reburials occur at State genocide memorials also interfered with the accepted norm of returning remains
to the deceased’s family.321
who may by now be adults, should be searched for,
identified and have their identity restored.325
Latin America brings some good experiences in this
area. The IACtHR has found that children who are
victims of ED require special measures of protection,
including the right to an identity that encompasses
the right to nationality, name and to family relationships.326 In Argentina, a group of activists known as
the Abuelas de Plaza de Mayo successfully lobbied
for laws to find and identify stolen children during
the Argentinean dictatorship. The legislation included
the establishment of:
Finally, we note that States have an obligation to
co-operate and provide each other with mutual assistance for the purpose of investigating ED, assisting
victims of ED in searching for, locating and releasing
the victims and, in the event of death, in exhuming
and identifying their remains.322
• a National Genetic Data Bank, to be used to identify stolen children;
Search, identification and
restitution of children
• the National Commission of the Right to Identity, to
enable the restitution of disappeared children; and
In Africa, there are no official records of how many
children have been subjected to ED. It is estimated
that there are approximately between 4,000 and
6,000 children born of war in Northern Uganda323.
They are vulnerable due to their lack of legal documentation and face further abuses of their human
rights, such as child labour, sexual exploitation and
human trafficking. The International Center for Transitional Justice recommended that Uganda revise its
national identity registration policy to become more
inclusive of children born of war.324, When searching
for disappeared children, the authorities should take
into account the vulnerability of children, including
their age and loss of identity. For new-born and very
young children, the authorities should take into account the fact that their identification documents
may have been altered and that they may have been
taken from their families, given a false identity and
handed over to a children’s institution or another
family for adoption. These children and adolescents,
• DNA testing of anyone suspected of being a stolen
child.327
The obligation to investigate,
prosecute and punish ED
States have a duty to carry out prompt, impartial and
independent investigations into all cases of ED. This
obligation has attained the status of jus cogens and
as such, cannot be waived by States.328
This means, amongst other things, that where there
are reasonable grounds for believing that a person
has been subjected to ED, the State should investigate
even if no formal complaint has been made.329 Investigations should be prompt, impartial, independent,
and carried out with diligence and must be aimed
320 International Commission on Missing Persons (“ICMP”), Rwanda; Tamara Hinan, Exhuming Norms and Comparing Investigations of Forced
Disappearances, 24 October 2018.
321 Tamara Hinan, Exhuming Norms and Comparing Investigations of Forced Disappearances, supra note 314.
322 African Charter, Article 1; ICPPED, Articles 14 and 15.
323 International Law Blog, Transitional Justice in Uganda: The Dilemma of Children Born of War, 24 July 2020.
324 International Law Blog, Transitional Justice in Uganda: The Dilemma of Children Born of War, 24 July 2020.
325 ICPPED, Guiding Principles for the search for disappeared persons, CED/C/7, 8 May 2019.
326 IACtHR, Gelman v. Uruguay, Merits and Reparations, Inter-Am Ct. H.R., Series C No. 221, 24 February 2011.
327 Rae, Marie, Truth at Any Cost? Law’s Power to Name Argentina’s Disappeared Grandchildren, Onati Socio-Legal Series, 2017.
328 UNGA, Question of enforced or involuntary disappearances, A/RES/55/103, 4 March 2001; HRC, Forced or involuntary disappearances, Resolution
21/4, 27 September 2012; IACtHR, Anzualdo Castro v. Peru, Judgment of 22 September 2009, para. 59; Gomes Lund and others (Guerrilha do
Araguaia) v. Brazil, Judgment of 24 November 2010, para. 137; IACtHR, Almonacid Arellano and others v. Chile, Judgment of 26 September 2006,
para. 99.
329 ICPPED, Article 12.2; UNGA, Declaration on the Protection of All Persons from Enforced Disappearance, Article 13(1); UNGA, Body of Principles
for the Protection of All Persons under Any Form of Detention, Res. 43/173, 9 December 1988, Principle 34; UNGA, United Nations Rules for the
Protection of Juveniles Deprived of their Liberty, Rule 57.
47
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