5
IV.
The Undue Fragmentation of the Crime of Forced Disappearance.
12.
All this jurisprudential construction is, nevertheless, left without effect in
the circumstances of the present Blake case, by reason of the limitation ratione
temporis to the competence of the Court. The changing reality of the facts,
definitively, always requires from legal rules a dynamic renewal, in order to
ensure their constant adequacy to the new needs of protection and, hence, their
efficacy. This naturally applies to the capacity of response and struggle against
new forms of violation of human rights.
13.
In the cas d'espèce, the limitation ratione temporis to the competence of
the Inter-American Court, in restricting the extent of the judicial settlement,
leads to the almost decharacterization of the crime of forced disappearance in the
Blake case. Such limitation breaks down that complex crime, retaining for
consideration, as to the rights protected by the Convention, the elements
pertaining only to the judicial guarantees (Article 8(1) of the American
Convention) and to the right to psychic and moral integrity (Article 5 of the
Convention), both in relation to the relatives of the disappeared person.
14.
There are other disturbing aspects in the "fragmentation" of the crime of
forced disappearance of persons in successive violations of human rights over
time: beyond the artificiality of such decharacterization lies the fact that, in the
forced disappearance of persons, we are before the violation of rights of a nonderogable character, such as the fundamental right to life itself, in the framework
of a continuing situation. This is what the preamble of the Inter-American
Convention on Forced Disappearance of Persons aptly warns, adding - as does
the preamble of the United Nations Declaration on the Protection of All Persons
against Forced Disappearances - that the systematic practice of such
disappearance constitutes a crime against humanity.
15.
We are, definitively, before a particularly grave violation of multiple
human rights. Among these are non-derogable fundamental rights, protected
both by human rights treaties as well as by International Humanitarian Law
14
treaties . The more recent doctrinal developments in the present domain of
protection disclose a tendency towards the "criminalization" of grave violations of
15
human rights , - as the practices of torture, of summary and extra-legal
executions, and of forced disappearance of persons. The prohibitions of such
practices pave the way for us to enter into the terra nova of the international jus
cogens. The emergence and consolidation of imperative norms of general
European Convention of Human Rights. European Commission of Human Rights, Decisions and
Reports, vol. 72, pp. 6 and 41-42.
13.
Cf., e.g., the provisions on fundamental guarantees of Additional Protocol I (of 1977) to the
Geneva Conventions on International Humanitarian Law (of 1949), Article 75, and of the Additional
Protocol II (of the same year), Article 4.
14.
As exemplified by the recognition of the individual responsibility (cf. the Inter-American
Convention to Prevent and Punish Torture, besides the Convention on the Prevention and Punishment
of the Crime of Genocide of 1948) parallel to the international responsibility of the State, and the
consolidation of the principle of universal jurisdiction (as one of the legal consequences of the
typification itself of the crime of forced disappearance of persons); cf. OEA/CP-CAJP, Informe..., op.
cit. supra n. (9), p. 9.
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