3
7.
Six years ago, in another case before this Court, I pointed out precisely the
necessity to consider the delict of forced disappearance of persons in the integrality of
their multiple and interrelated aspects5. Such necessity ensues, in effect, from the
rationale itself of the tipification of the delict referred to by the Inter-American
Convention on Forced Disappearance of Persons (1994), - ratified by Bolivia on
05.05.1999, - which defines it as a delict "continuing or permanent as long as the fate
or whereabouts of the victim has not been determined" (Article III). Moreover, the
aforementioned Convention warns that it is a specific and autonomous delict6, which
constitutes a complex form of violation of human rights (with interrelated delictual
facts). For this reason, it requires to be considered from a necessarily integral
approach7. In the travaux préparatoires of that Convention, it was pointed out that the
delict referred to "is permanent in so far as it is consummated not in an instantaneous
form but rather in a permanent one and it is prolongued during all the time that the
person remains disappeared"8, - what was duly reflected in Article III of the Convention
(supra).
8.
The same conception ensues from the United Nations Declaration on the
Protection of All Persons against Forced Disappearances (1992), which, after stressing
the gravity of the delict of forced disappearance of person (Article 1(1)), warns likewise
that this latter ought to be "considered a permanent delict while its authors continue to
hide the fate and the whereabouts of the disappeared person and while the facts have
not been clarified" (Article 17(1)). One ought, thus, to have always in mind, as to the
material aspect of the question dealt with herein, that the forced disappearance of
persons constitutes, first, a complex form of violation of human rights; second, a
particularly grave violation; and third, a continuing or permanent violation (until the
destiny or whereabouts of the victim is established).
9.
In my Separate Opinion in the case Blake versus Guatemala (merits, 1998), in
identifying a décalage between the traditional law of treaties and the International Law
of Human Rights (par. 16), I pondered that the former could not keep on not taking
into account the element of intemporality proper of this latter (par. 21), and added that
"it would not be possible, for example, to speak of limitations ratione temporis to the
competence of an international tribunal (...) in relation to norms of general international
law. (...) The opinio juris sive necessitatis (the subjective element of custom), as
manifestation of the international juridical conscience, reveals nowadays much more vigour
than the secular postulates of the law of treaties, when one comes to establish new legal
regimes of protection of the human being against particularly grave violations of his rights"
(par. 24).
5
.
Cf. my Separate Opinion in the case Blake versus Guatemala (Preliminary Objections, 1996,
paragraphs 3-4, 11-12 and 15).
6
.
As expressly pointed out in the travaux préparatoires of the Inter-American Convention on Forced
Disappearance of Persons; cf. CIDH, Informe Anual de la Comisión Interamericana de Derechos Humanos
1987-1988, p. 365.
7
.
As it can be inferred from the preble and Articles IV and II of that Convention.
8
.
OEA/CP-CAJP, Informe del Presidente del Grupo de Trabajo Encargado de Analizar el Proyecto de
Convención Interamericana sobre Desaparición Forzada de Personas, doc. OEA/Ser.G/CP/CAJP-925/93 rev.1,
of 25.01.1994, p. 10.