87
jurisdiction, acknowledges the right to a competent tribunal. In effect, through this
provision, the State Parties to the CIDFP undertake to respect the right to a competent
judge to hear the criminal case regarding the crime of forced disappearance, which is a
common judge, since, as previously stated, the juridical right protected transcends military
interests (supra para. 275).
310. The Court has established that “a reservation that suspends the entire fundamental
right whose content is nonrevocable shall be considered as incompatible with the object and
purpose of the Convention and, therefore, incompatible with the same. The situation could
be different if the reservation only restricts certain aspects of the domestic legislation
nonrevocable without depriving the right of its basic content.”300 Upon making this
determination the Tribunal shall examine if even when the reservation only restricts some
aspects of a nonrevocable right, it prevents giving the treaty its full sense and useful
effect.301
311. As previously stated, the reservation to Article IX of the CIDFP implies disregard of
the human right to a competent tribunal, in the due investigation and eventual punishment
of those responsible for the commission of the forced disappearance of persons. The need to
guarantee that this type of cases be investigated in an impartial manner before the
competent instances pursuant with international obligations, transcends the States’
interests. The eradication of the impunity of grave violations of human rights,302 such as the
one that occurred in the present case, has a collective guarantee, reflected in the clear and
growing interest of the entire society and all Democratic Constitutional states to strengthen
the international protection mechanisms in the field. The Court considers that the right to a
competent tribunal, acknowledged in Article IX of this Convention, is indispensable for the
achievement of the purposes established therein.
312. Taking into account all the aforementioned, this Tribunal considers that the
reservation made by Mexico does not satisfy the first requirement established in Article XIX
of the CIDFP, therefore it shall be considered invalid. In this sense, it is evident that the
application of the military jurisdiction in the present case, for which the State extended the
competence of the military jurisdiction to facts that are not strictly related to military
discipline or with juridical acts characteristic of the military realm, is contrary to the
300
Cf. Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights).
Advisory Opinion OC-3/83, supra note 293, para. 60.
301
Cf. Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights).
Advisory Opinion OC-3/83, supra note 293, para. 61, and Case of Velásquez Rodríguez v. Honduras, supra note 32,
para. 30.
302
Cf. Resolution regarding disappeared persons and assistance to their next of kin, AG/RES. 2513 (XXXIXO/09), approved by the General Assembly of the OAS on June 4, 2009, fourth and sixth operative paragraphs, at
http://www.oas.org/dil/esp/AG-RES2513-2009.doc; Resolution regarding disappeared persons and assistance for
their next of kin, AG/RES. 2231 (XXXVI-O/06), approved by the General Assembly of the OAS on June 6, 2006,
third
and
seventh
operative
paragraphs,
in
http://www.civilsociety.oas.org/General%20Assembly%20Resolutions/Sto%20Domingo/Esp/AG%20RES%202232%20spanish.doc;
Resolution on the right to the truth, 2005/66, apprived by the Human Rights Commission of the United Nations on
April 20, 2005, second to fourth operative paragraphs, at http://ap.ohchr.org/documents/S/CHR/resolutions/ECN4-RES-2005-66.doc; Resolution on the matter of Forced or Involuntary Disappearances, 59/200, approved by
the General Assembly of the United Nations on March 23, 2005, 4th operative paragraph, at
http://www.acnur.org/biblioteca/pdf/3758.pdf; Resolution on Forced or Involuntary Disappearances 2004/40,
approved by the Human Rights Commission on April 19, 2004, Operative paragraphs 7(b), 7(c), and 7(d), at
http://www2.ohchr.org/spanish/issues/disappear/docs/E-CN4-RES-2004-40.doc; Resolution on the matter of
forced or involuntary disappearances, 2003/38, approved by the Human Rights Commission on April 23, 2003,
Operative paragraphs 5(c), 5(d), and 5(d), at http://www2.ohchr.org/spanish/issues/disappear/docs/E-CN4-RES2003-38.doc
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