No impuNity for eNforced disappearaNces - Amnesty International

14No Impunity for Enforced DisappearancesChecklist for effective implementation of the International Convention for the Protection of All Persons from EnforcedDisappearanceTherefore, states parties must exclude superior orders as a ground for excluding criminalresponsibility, although it can be a ground for mitigation of punishment, and expressly provide thatthe order to commit or to participate in any way in the crime of enforced disappearance is“manifestly unlawful” or criminal. 40 Compulsion, duress, necessity, and any form of “exceptionalcircumstances” must similarly be excluded as defences to the crime of enforced disappearance. Notonly must states refrain from creating new defences for these grounds, states must ensure that anysuch defences that already exist under national law are made expressly inapplicable to the crime ofenforced disappearance.5. SANCTIONS5.1 APPROPRIATE PENALTIESArticle 71. Each State Party shall make the offence of enforced disappearance punishable by appropriatepenalties which take into account its extreme seriousness.The Convention provides in Article 7 (1) that states parties have the obligation to punish “byappropriate penalties which take into account its extreme seriousness.” To be consistent withinternational law and standards, as well as the UN General Assembly’s calls upon all states toimpose a moratorium on the death penalty, this penalty should be excluded as an appropriatepenalty for an enforced disappearance. Even with the most serious crimes (genocide, crimesagainst humanity – including enforced disappearances – and war crimes), every internationaland internationalized court established since 1993 excludes this penalty, including: theRome Statute, the ICTY and Rwanda Statutes, the Statute of the Special Court for SierraLeone and the Extraordinary Chambers in the courts of Cambodia. 41The maximum sentence should not exceed the maximum sentence of life imprisonment forthis crime under the Rome Statute and the statutes of other international criminal courts,including the International Criminal Tribunal for the former Yugoslavia; the InternationalCriminal Tribunal for Rwanda; the Special Panels for Serious Crimes in Dili, Timor-Leste; theinternational panels in Kosovo; the Special Court for Sierra Leone; the War Crimes Chamberat the State Court of Bosnia and Herzegovina; and the Extraordinary Chambers in the Court ofCambodia, exclude the death penalty as an appropriate penalty for the crime of enforceddisappearance.Establish appropriate penalties for the crime of enforced disappearance with a maximum sentenceof life imprisonment, excluding in any case the death penalty in accordance with international lawand standards..402010 Working Group Report, para. 53.41Rome Statute, art. 77; ICTY Statute, art. 24; ICTR Statute, art. 23; UNTAET Reg. 2000/15, s. 10(25 years); Statute of the Special Court for Sierra Leone Statute, art. 19; Cambodian ExtraordinaryChambers Law, art. 38.Amnesty International November 2011 Index: IOR 51/006/2011