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Convention to Prevent and Punish Torture) and forced disappearance (Article II of
the aforementioned Convention). In the context of criminal law systems, we would
say that these precepts include the legal definitions of the crimes of torture and
disappearance. In essence, both conventions fall under the definition of special
criminal statutes, as far as the aspect I am now examining is concerned, and
therefore have their place within a criminal corpus juris.
5.
When States become parties to an international treaty on human rights,
something which they do in the course of exercising their sovereignty right and not
in spite of it or to its detriment, they undertake certain obligations regarding the
other States belonging to the system inherent to the treaty and towards the
individuals that are subject to the jurisdiction of the State party itself. This is a
characteristic of human right treaties, as opposed to another type of instruments
that are limited to defining legal relations between States, establishing their mutual
rights and obligations.
6.
Thorough analysis has been made as to the content of the general duties
undertaken by a State upon ratifying the American Convention on Human Rights.
These duties are specified in Articles 1 and 2 of the Pact: recognizing rights and,
consequently, properly respecting and ensuring the exercise of those rights, adopting
any appropriate measures. For the purposes of this Opinion, and the judgment I
concur with, it is important to refer to the obligation set forth in Article 2, under the
heading "Domestic Legal Effects": where the exercise of the rights and freedoms
referred to in Article 1; i.e. those contained in the Convention, “is not already
ensured by legislative or other provisions, the State Parties undertake to adopt [...]
such legislative measures or other measures as may be necessary to give effect to
those rights and freedoms."
7.
Thus, the domestic legal order should be built or re-built in consonance with
the international legal order that the State adopted and incorporated into its own.
The provisions that govern the respect and safeguard of human rights and
fundamental freedoms include criminal laws ―general provisions, crime definitions
and legal consequences― aimed at protecting interests and rights resorting to the
most forceful means available to society and the State.
8.
These general duties give rise to the specific commitment of States regarding
certain provisions. Let’s go back to the instruments mentioned before. Article 1 of
the Convention against Torture sets forth that: “The State Parties undertake to
prevent and punish torture in accordance with the terms of this Convention;” and
Article III of the Convention on Forced Disappearance of Persons provides as follows:
“The State Parties undertake to adopt […] such legislative measures that may be
needed to define the forced disappearance of persons as an offense and to impose
an appropriate punishment commensurate with its extreme gravity.”
9.
The drafters and signatories of treaties ―who are, at the same time, bound
by said instruments― understand that the illegal conducts defined therein call for
their own forms of prosecution, that the usual statutory definitions contained in
domestic law applicable to similar or approximate hypothesis ―such as battery,
injuries or threats in the case of torture, and illegal deprivation of freedom,
abduction or obstruction of justice, in the case of forced disappearance of persons―
will not suffice and they also understand that the definition provided by the
international instrument is the appropriate and sufficient way to react when such
crimes are committed, as the international community is interested in their