41
to life, personal integrity, personal liberty and recognition of juridical personality, since the Court
cannot hear facts prior to the date on which Guatemala recognized its jurisdiction. On the other
hand, it cited the Case of Efraín Bámaca Velásquez to argue that “the arbitrary deprivation of
life suppresses the human person and, therefore, it is not appropriate, in this circumstance, to
invoke the alleged violation of the right to juridical personality or of other rights enshrined in the
Convention.” Finally, it objected to the addition of new names of persons who had allegedly been
“extrajudicially executed,” according to the Commission’s Admissibility and Merits Reports, to
the list of persons presumed to have been forcibly disappeared.
B.
Considerations of the Court
131. In the instant case, the State has been emphatic in pointing out that it does not seek to
deny the events that caused the human rights violations, or its responsibility if there has been
willful misconduct, negligence or institutional fault on its part or that of public officials or
employees (supra paras. 15 and 51). However, it challenged the analysis made by the Court on
forced disappearance in its case law, and on this basis argued that international responsibility
cannot be attributed to it for the facts of this case. The Court will proceed to respond to the
State’s arguments.
132. First, the State argued that it cannot be held internationally responsible for the
disappearances that occurred during the internal armed conflict, because the crime of forced
disappearance is a permanent crime that was not defined in its domestic criminal law nor did it
exist in the inter-American sphere itself, and it cannot be classified as such in accordance with
the principles of legality and non-retroactivity of the law. In any case, according to the State,
the crime could be classified as kidnapping, unlawful detention or serious injury.
133. In its consistent case law since 1988, 139 the Court has established that forced
disappearance of persons is a violation of human rights constituted by three concurrent elements:
a) deprivation of liberty; b) direct intervention of State agents or their acquiescence, and c) the
refusal to acknowledge the detention and to reveal the fate or whereabouts of the person
concerned. In this regard, the Court has also established the pluri-offensive nature of forced
disappearance, as well as its permanent or continuing nature, in which the execution of the
disappearance begins with the deprivation of the person’s liberty and the subsequent lack of
information about his or her fate, and continues until the whereabouts of the disappeared person
are known or his or her remains are found, so as to determine with certainty his or her identity. 140
As long as the disappearance continues, States have the correlative duty to investigate it and,
eventually, to punish those responsible, in accordance with the obligations derived from the
American Convention and, in particular, from the Inter-American Convention on Forced
Disappearance of Persons (ICFDP). 141
134. This Court has jurisdiction to characterize the facts of the instant case as forced
disappearance given the permanent or continuous nature of its constituent acts, and the fact
that it is a “multi offensive” crime, which violates several rights recognized in the American
Convention as long as the whereabouts of the victim are not known or his remains are not found.
The Court recalls that forced disappearance encompasses multiple acts which, combined for a
single purpose, permanently violate, for as long as they subsist, different legal rights protected
139
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 155, and
Case of Tenorio Roca et al. v. Peru. Preliminary objections, merits, reparations and costs. Judgment of June 22, 2016.
Series C No. 314, para. 141.
140
Cf. Inter alia, Case of Velásquez Rodríguez v. Honduras. Merits, paras. 155 to 157, and Case of Osorio Rivera and
Family Members v. Peru. Preliminary objections, merits, reparations and costs. Judgment of November 26, 2013. Series
C No. 274, para. 31.
141
Cf. Case of Radilla Pacheco v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of November
23, 2009. Series C No. 209, para. 145, and Case of Osorio Rivera and Family Members v. Peru, para. 115.