60
captured. This practice, which also sought to prevent any possibility of proving it,
was applied to Efraín Bámaca Velásquez.
125. In its final oral arguments in the public hearing on merits held in Washington
D.C., United States (supra 48), the State admitted that
it effectively knew that, within the ranks of the Army, there was a systematic practice,
when a member of the URNG was detained or gave himself up, of transferring him to the
National Army, if this was useful or offered sufficient benefits to make it attractive.
However, during the same hearing, the State added that
if Mr. Bámaca [Velásquez] was effectively a prisoner of war, he was an exception and it
was not common practice.
*
*
*
126. In its Article II, the Inter-American Convention on Forced Disappearance of
Persons defines forced disappearance as
the act of depriving a person or persons of his or their freedom, in whatever way,
perpetrated by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by an absence of
information or a refusal to acknowledge that deprivation of freedom or to give
information on the whereabouts of that person, thereby impeding his or her recourse to
the applicable legal remedies and procedural guarantees.
127.
Article 201 TER of the Guatemalan Criminal Code - reformed by Decree No. 33-96 of the
Congress of the Republic, adopted on May 22, 1996 - establishes:
[t]he person who, with the authorization or support of State authorities, shall, for
political motives, in any way, deprive one or more persons of their liberty, concealing
their whereabouts, refusing to reveal their fate or acknowledge their detention, and also
the public official or employee, whether or not he is a member of a State security
agency, who orders, authorizes, supports or acquiesces to such actions, shall commit
the crime of forced disappearance80.
128. Involuntary or forced disappearance constitutes a multiple and continuing
violation of a number of rights protected by the Convention81, because not only does
it produce an arbitrary deprivation of liberty, but it also endangers personal
integrity, safety and the very life of the detainee. Moreover, it places the victim in a
state of complete defenselessness, resulting in other related crimes.
129. This phenomenon also presumes “a disregard of the duty to organize the
apparatus of the State in such a manner as to guarantee the rights recognized in the
Convention”82. Therefore, when it implements or tolerates actions tending to
execute forced or involuntary disappearances, when it does not investigate them
adequately and does not punish those responsible, when applicable, the State
80
Cf. Blake Case, supra note 52, para. 64.
81
Cf. Blake Case, supra note 52, para. 65; Godínez Cruz Case, supra note 53, paras. 163 and 166;
Caso Fairén Garbi, supra note 53, para. 147; and Velásquez Rodríguez Case, supra note 53, paras. 155
and 158.
82
Ibid.
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