86
provision satisfies the requirements established in Article XIX of that instrument, that is, if it
is compatible with the objective and purpose of the treaty and if it refers to specific
stipulations (supra para. 302). Compliance with these requirements does not constitute a
mere formality; it is a material condition of the treaty that shall be met in order to
guarantee that the reservation made does not exceed the limits of that expressly permitted
in the same.298
306. The Court observes that the State’s reservation was presented in the following
terms:
The Government of the United Mexican States, upon ratifying the Inter-American Convention on
the Forced Disappearance of Persons adopted in Belem, Brazil on June 9, 1994 makes express
reservation to Article IX, inasmuch as the Political Constitution recognizes military jurisdiction
when a member of the armed forces commits an illicit act while on duty. Military jurisdiction does
not constitute a special jurisdiction in the sense of the Convention given that according to Article
14 of the Mexican Constitution nobody may be deprived of his life, liberty, property, possessions,
or rights except as a result of a trial before previously established courts in which due process is
observed in accordance with laws promulgated prior to the fact.
307. Regarding its compatibility with the objective and purpose of the treaty, the Tribunal
warns that, through the reservation, Mexico establishes that the military jurisdiction is
competent to hear a case of forced disappearance if a member of the armed forces commits
the crime while on duty. This implies a reference to a jurisdiction that in order to be applied
requires a personal, not a material, classification. It is not stated that an analysis of the
juridical interests behind the crime is necessary, nor is the military discipline or any other
military juridical interest used as a point of reference. Likewise, upon adding a reservation
to Article IX of the CIDFP, the State of Mexico is establishing a general rule on the
competence of the military criminal jurisdiction. As has been mentioned by this Court,299
military justice is of an exceptional nature that necessarily requires a justification in the
specific case (supra para. 272).
308. The objective and purpose of a treaty such as the CIDFP is the effective protection of
the human rights acknowledged therein. In terms of its Article I, its specific purpose is to
guarantee the effective prevention, punishment, and suppression of the practice of forced
disappearance of persons, avoiding its effects, namely, the multiple violations of human
rights. For this, said Convention has stipulated a series of obligations, through which the
State Parties undertake: “a) Not to practice, permit, or tolerate the forced disappearance of
persons, even in states of emergency or suspension of individual guarantees; b) To punish
within their jurisdictions, those persons who commit or attempt to commit the crime of
forced disappearance of persons and their accomplices and accessories; c) To cooperate
with one another in helping to prevent, punish, and eliminate the forced disappearance of
persons; and d) To take legislative, administrative, judicial, and any other measures
necessary to comply with the commitments undertaken in this Convention.”
309. One of the rights protected in the CIDFP, which tends to achieve the effective
punishment of the authors of the crime of forced disappearance, is that of a competent
tribunal, necessarily linked to the right to a due process of law and to a fair trial,
acknowledged in Articles 8(1) and 25(1) of the American Convention (supra para. 273),
rights that are nonrevocable. Thus, Article IX of the CIDFP, beyond being a rule on
298
As has been considered by the European Court of Human Rights. Cf. Case of Belilos v. Switzerland, supra
note 295, para. 59.
299
Cf. Case of Cantoral Benavides v. Peru. Merits, supra note 274, para. 113; Case of 19 Tradesmen, supra
note 274, para. 165, and Case of Tiu Tojín v. Guatemala, supra note 24, para. 118.
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