No impuNity for eNforced disappearaNces - Amnesty International

22No Impunity for Enforced DisappearancesChecklist for effective implementation of the International Convention for the Protection of All Persons from EnforcedDisappearanceStates parties must provide that their courts can exercise universal jurisdiction over any case ofenforced disappearance. They should eliminate any barriers to exercising it, including therequirement that the suspect be present in their territory before an investigation can be opened oran extradition request made.7.2. ELIMINATION OF INAPPROPRIATE OBSTACLES TO EXERCISE JURISDICTIONStates must eliminate any obstacles to the exercise of jurisdiction over crimes of enforceddisappearance, whether as a crime against humanity or not. For the same reasons that theCommittee against Torture concluded that the Convention against Torture must prevail overnational laws offering a form of impunity, the Convention must prevail over any nationallegislation in conflict with the obligations of states parties under that treaty. 61 Indeed, it is along-established rule of international law that treaty obligations prevail over any conflictingnational law. 62As stated by the Inter-American Court of Human Rights, “the State may never apply amnestylaws –which will produce no effects in the future –, raise the statute of limitations, non-expost facto nature of criminal laws or res judicata defenses, or rely upon the principle ofdouble jeopardy, or resort to any other similar measure designed to eliminate responsibility inorder to escape its duty to investigate and punish those responsible.” 63No military courts. States agreed when adopting Article 16 (2) of the 1992 Declaration that thecrime of enforced disappearance must be tried only by competent ordinary courts, and not inany other special tribunal, in particular military courts. 64 This prohibition, expresslyestablished in Article IX of the Inter-American Convention, 65 was not expressly included inthe Convention. It is implicit in Article 11 (3), which establishes the persons suspected ofhaving committed a crime of enforced disappearance shall benefit from a fair trial before a61Committee against Torture, Sixteenth session, Summary Record of the 247th Meeting, U.N. Doc.CAT/C/SR.247, para. 20.62See Articles 26 and 27 of the Vienna Convention on the Law of the Treaties, U.N. Doc A/CONF.39/27(1969), 1155 U.N.T.S. 331. Annemie Schaus, Les Conventions de Vienne sur le droit des traités,p.1137 (« L’article 27 de la Convention de Vienne, quant à lui, prescrit certainement, dans l’ordrejuridique international, la primauté du droit international sur le droit interne ») and at p.1124 («Leprincipe d’impuissance du droit interne à justifier la non exécution d’un traité, telle que contenue ál’article 27, reflète en tout état de cause le droit international coutumier »)..63See IACtHR, Case of La Cantuta v. Peru (Merits, Reparations and Costs), 29 November 2006, para.226.641992 Declaration, art. 16 (2) (“They shall be tried only by the competent ordinary courts in eachState, and not by any other special tribunal, in particular military courts.”). See also Inter-AmericanConvention, Article IX, 1 st para. (“Persons alleged to be responsible for the acts constituting the offenseof forced disappearance of persons may be tried only in the competent jurisdictions of ordinary law ineach state, to the exclusion of all other special jurisdictions, particularly military jurisdictions.”); 14-Point Program, Pt. 11 (“Trials should be in the civilian courts.”).65Inter-American Convention, art. IX (“Persons alleged to be responsible for the acts constituting theoffense of forced disappearance of persons may be tried only in the competent jurisdictions of ordinarylaw in each state, to the exclusion of all other special jurisdictions, particularly military jurisdictions.The acts constituting forced disappearance shall not be deemed to have been committed in the course ofmilitary duties.”).Amnesty International November 2011 Index: IOR 51/006/2011