40
e)
the Special Commission is now debating a proposal to adapt
legislation to the Rome Statute, specifically regarding forced disappearance
of persons. The objections raised by the Inter-American Commission are no
longer applicable to the language of the new Article, in other words, the
objective element of a "duly proven" disappearance is no longer part of the
statutory definition, if such difficulty were to be still at issue. Moreover, the
new Article includes as a possible offender any person who, not being a
public official or servant, commits ―with the consent or acquiescence of the
latter― the illegal act of forced disappearance.
Considerations of the Court
90.
Article 2 of the American Convention sets forth that:
[w]here the exercise of any of the rights or freedoms referred to in Article 1 is not
already ensured by legislative or other provisions, the States Parties undertake to
adopt, in accordance with their constitutional processes and the provisions of this
Convention, such legislative or other measures as may be necessary to give effect to
those rights or freedoms.
91.
The general obligation imposed upon States to adapt domestic laws to the
provisions of the American Convention in order to guarantee the rights enshrined
therein includes the adoption of laws and the development of practices leading to
the effective enforcement of said rights and freedoms, as well as the adoption of the
necessary measures to abolish any laws and practices that entail a violation of the
guarantees embodied in the Convention.64 This general obligation by States Parties
implies that domestic law measures must be effective (effet utile principle) and to
this end the State must act in conformity with the protection provisions of the
Convention.65
92.
In relation to the forced disappearance of persons, the duty to adapt
domestic law to the provisions of the American Convention, pursuant to Article 2, is
of paramount importance in order to effectively eradicate this practice. Considering
how particularly serious forced disappearance of persons is,66 the protection
afforded by existing criminal laws regarding manstealing or abduction, torture, and
64
Cf. Case of Yatama, supra note 8, para. 170; Case of Caesar. Judgment of March 11, 2005.
Series C No. 123, para. 91; and Case of Lori Berenson-Mejía. Judgment of November 25, 2004. Series C
No. 119, para. 219.
65
Cf. Case of Yatama, supra note 8, para. 170; Case of Lori Berenson-Mejía, supra note 64, para.
220; and Case of the “Juvenile Reeducation Institute” v. Paraguay. Judgment of September 2, 2004.
Series C No. 112, para. 205.
66
In accordance with the Preamble of the Inter-American Convention on Forced Disappearance of
Persons, forced disappearance “i[s] an affront to the conscience of the Hemisphere and a grave and
abominable offense against the inherent dignity of the human being” and its systematic practice
“constitutes a crime against humanity.”
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