CONCURRING OPINION OF JUDGE DIEGO GARCIA-SAYÁN JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF THE MASSACRES OF EL MOZOTE AND NEARBY PLACES v. EL SALVADOR OF OCTOBER 25, 2012 1. On several occasions, the Inter-American Court of Human Rights has referred in its judgments to the issue of amnesties in relation to the protection of human rights and the obligation of the State to investigate and, as appropriate, punish serious human rights violations. 2. For a long time, the question of amnesties has been a significant issue in international law, in international relations, and in the examination of non-international armed conflicts. In Latin America, throughout the twentieth century, amnesties were routinely used as a tool to end civil wars, outbreaks of violence, failed coups d’état, and different armed conflicts. At least until the early 1990s, these amnesties were used without any preliminary discussion or analysis. 3. In more recent times, they are a matter of growing relevance in international human rights law, as indicated in various judgments of the Inter-American Court that refer to the issue. The problem concerns horrendous events and contexts that usually give rise to these controversial responses by the law. Authoritarian or dictatorial regimes, political transition processes, internal tensions or armed conflicts, among other matters, within frameworks that are usually very complex, from a political and social perspective, usually provide the objective conditions based on which amnesties are proposed. 4. Regardless of the decision in previous cases, the question of amnesties and their relationship to the obligation to investigate and punish serious human rights violations requires an analysis that provides appropriate criteria for a considered opinion in contexts in which tensions could arise between the demands of justice and the requirements of a negotiated peace in the framework of a non-international armed conflict. This concurring opinion addresses precisely these issues, based on the Court’s judgment in this case. 5. It is well-known that the “exemplary” case establishing what, for some, is the Court’s interpretation of this issue is the case of Barrios Altos v. Peru decided on March 14, 2001. In the most known and most quoted paragraph of this judgment, the Court established that: “41. […] amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.” 6. 1 In that specific case, this approach was in response to two laws enacted in Peru in 1995, which the Court described in its judgment as "self-amnesties." The condition of “self-amnesty” of the laws examined was so relevant, that it appeared that the Court had limited its interpretation to that type of amnesty.1 This interpretation could arise from the considerations in paragraph 43 of this judgment: "43. That is why the States Parties to the Convention that adopt laws that have this effect, such as self-amnesty laws, incur in a violation of Articles 8 and 25 in relation to Articles 1(1) and 2 of the Convention" (underlining added).