3
punishment. Were it not so, it would be meaningless to establish binding descriptions
and to impose specific obligations upon the States in such regard.
10.
It is possible to assume that the States are free to adopt more severe
mechanisms to prosecute these violations should they deem it fit, proper or fair for
the better protection of human rights; provided, however, that upon doing so they
do not infringe other principles or rules that cannot be passed over. The international
definition of a crime constitutes the minimum prosecutable core, which may be
improved ―to further serve the purposes and the reasons that justify such
definition― though not altered, conditioned or defused by eliminating the necessary
elements from the form requiring prosecution or by introducing characteristics that
reduce its meaning or efficiency, ultimately resulting in the impunity of conducts for
which the international order, with the deliberate backing by the State, has defined
appropriate punishment.
11.
In some case, the Court has upheld the need for a State Party to the
Convention on Forced Disappearance to incorporate the related criminal definition
into its own legislation. In the judgment on reparations in the Case of Trujillo-Oroza,
the Court held: “(…) it is also important to place on record that the failure to define
the forced disappearance of persons as an offense has prevented the criminal
prosecution in Bolivia to investigate and punish the crimes committed against José
Carlos Trujillo Oroza from being carried out effectively, and allowed impunity to
continue in the instant case” (para. 97). Consequently, the Court ordered the State
“to define the forced disappearance of persons as an offense in its domestic
legislation is in order” and considered “that reparation should only be considered
complete when the draft becomes a law of the Republic and enters into force, and
this should occur within a reasonable time after notification” of the judgment (para.
98).
12.
We should now briefly examine the description of the crime of forced
disappearance contained in Article II of the 1994 Convention. That instrument refers
to various elements of the crime definition that, individually and as a whole, are part
of the prosecutable core, that is the internationally accepted definition ―which the
State has approved and consented― which must be complied with in the domestic
order, as indicated above (para. 10). The incorporation of these elements into the
definition contained in domestic statute evidences compliance with the international
commitment established in the American Convention (Articles 1 and 2) and the
Convention on Forced Disappearance (Article III).
13.
A) The illegal conduct consists in the “deprivation of freedom […] in any
manner [...] followed by a refusal to acknowledge that deprivation of freedom or to
give information on the whereabouts of that person." Deprivation of freedom consists
in an impairment or loss of that freedom. The manner in which that deprivation
occurred is irrelevant: it may be lawful or unlawful, violent or peaceful, etc.
14.
The Statute of the International Court of Justice, which is mentioned by our
Tribunal for the purposes of the instant case ―recalling, for sure, that it has been
ratified by Peru― is less accurate in this regard: “arrest, detention or abduction.”
The shortcomings in that text, which call for interpretations that will always be risky,
consist in that it does not expressly include other types of deprivation of freedom
that do not fall under formal descriptions: arrest or detention –unless detention is
given a broad meaning, almost all inclusive- or do not include the basic elements of
abduction.