18
B.2. Considerations of the Court
49.
Peru ratified the Inter-American Convention on Forced Disappearance of Persons
(hereinafter “ICFDP”) on February 8, 2002. The State’s arguments in relation to this preliminary
objection question the Court’s material jurisdiction with respect of this Inter-American Convention,
arguing that the Court cannot exercise its contentious jurisdiction to declare a violation of the
provisions of said international instrument for acts that, according to the State, would have been
classified by the Peruvian judiciary as extrajudicial executions. Article XIII of the Inter-American
Convention on Forced Disappearance of Persons, in relation to Article 62 of the American
Convention, grants the Court the power to hear matters related to compliance with the
commitments assumed by the States Parties to said instrument. 25 This article of the ICFDP
establishes that:
For the purposes of this Convention, the processing of petitions or communications presented to the InterAmerican Commission on Human Rights alleging the forced disappearance of persons shall be subject to
the procedures established in the American Convention on Human Rights and to the Statute and Rules of
Procedure of the Inter-American Commission on Human Rights and to the Statute and Rules of Procedure
of the Inter-American Court of Human Rights, including the provisions on precautionary measures.
(Emphasis added).
50.
Therefore, the allegation that what occurred in the instant case could constitute a forced
disappearance is sufficient for the Court to exercise its jurisdiction to examine a possible violation
of said Convention. 26 In this case, both the classification of the facts as forced disappearances
or extrajudicial executions, as well as the effectiveness of the investigation conducted in this
regard, are issues that are part of the dispute in the case. Therefore, since the applicability or
non-applicability of the ICFDP to the facts of this case cannot be considered without establishing
the facts and analyzing the merits of the case, neither can this issue be analyzed by means of
a preliminary objection. 27 Such analysis will be carried out in the corresponding chapters of this
judgment.
51.
Within the sphere of its jurisdiction, it is incumbent upon the Inter-American Court to
assess the actions or omissions of State agents in the cases before it, according to the evidence
presented by the parties, and in conformity with the American Convention and other interAmerican treaties that grant it jurisdiction, in order to determine whether the State has incurred
international responsibility. 28 Furthermore, it should be recalled that it is not for the Court to
analyze the assumptions of responsibility made during the investigation of the facts and,
consequently, to determine individual responsibilities, the definition of which is the purview of
the domestic criminal courts. 29
52.
25
Accordingly, the Court dismisses the preliminary objection filed by the State.
Cf. Case of Gómez Palomino v. Peru. Merits, reparations and costs. Judgment of November 22, 2005. Series C No. 136,
para. 110, and Case of Rodríguez Vera et al. (Disappeared of the Palace of Justice) v. Colombia, supra, para. 43.
26
Cf. Case of Gómez Palomino v. Peru, supra, para. 110, and Case of Rodríguez Vera et al. (Disappeared of the
Palace of Justice) v. Colombia, supra, para. 44.
27
Cf. Case of Castañeda Gutman v. Mexico, supra, para. 39, and Artavia Murillo et. al. (In Vitro Fertilization) v. Costa
Rica. Preliminary objections, merits, reparations and costs. Judgment of November 28, 2012 Series C No. 257, para. 40.
28
In this regard, see Case of Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary objection, merits,
reparations and costs. Judgment of 10 July 2007. Series C No. 167, para. 87, and Case of Cruz Sánchez et al. v. Peru,
supra, para. 329.
29
Cf. Case of Cantoral Huamaní and García Santa Cruz v. Peru, supra, para. 87, and Case of Rodríguez Vera et al.
(Disappeared of the Palace of Justice) v. Colombia, supra, para. 500.