Chapter 3 • The Major Regional Human Rights Instruments and the Mechanisms for Their Implementation
information on the whereabouts of that person, thereby impeding his or her recourse to
the applicable legal remedies and procedural guarantees” (art. II).
3.3.2 The undertakings of the States parties
The States parties undertake, in particular, not to practise, permit or tolerate
the forced disappearance of persons, even in states of emergency or suspension of
individual guarantees; to punish within their jurisdictions those persons who commit or
attempt to commit the crime of forced disappearance of persons and their accomplices
and accessories; to cooperate with one another in helping to prevent, punish and
eliminate the forced disappearance of persons; and to take legislative, administrative,
judicial, and any other measures necessary to comply with the commitments
undertaken in the Convention (art. I; for further details as to the duty to take legislative
measures, see also art. III).
The Convention further regulates the duty to establish jurisdiction over cases
involving the forced disappearance of persons (art. IV), and provides that such cases
shall not be considered political offences for purposes of extradition but shall be
deemed extraditable offences (art. V). Moreover, “criminal prosecution for the forced
disappearance of persons and the penalty judicially imposed on its perpetrator shall not
be subject to statutes of limitations”, unless there is a norm of a fundamental character
preventing the application of this rule; in the latter case, however, “the period of
limitation shall be equal to that which applies to the gravest crime in the domestic laws
of the ... State Party” (art. VII). Quite significantly, persons alleged to be responsible for
the acts constituting the offence of forced disappearance of persons “may be tried only
in the competent jurisdictions of ordinary law in each State, to the exclusion of all
other special jurisdictions, particularly military jurisdictions” (art. IX; emphasis
added).
As in the case of the torture conventions, exceptional circumstances such as a
state of war or any other public emergency cannot be invoked to justify the forced
disappearance of persons; in such cases, “the right to expeditious and effective judicial
procedures and recourse shall be retained as a means of determining the whereabouts
or state of health of a person who has been deprived of freedom, or of identifying the
official who ordered or carried out such deprivation of freedom”. In connection with
such procedures, “the competent judicial authorities shall have free and immediate
access to all detention centres and to each of their units, and to all places where there is
reason to believe the disappeared person might be found, including places that are
subject to military jurisdiction” (art. X).
3.3.3 The implementation mechanism
The Convention provides that “the processing of petitions or
communications presented to the Inter-American 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
Regulations of the ... Commission ... and to the Statute and Rules of Procedure of the
Inter-American Court of Human Rights, including the provisions on precautionary
measures” (art. XIII). An urgent procedure is also provided for cases where the
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers