amnesty laws in relation to grave human rights violations with international law and the
international obligations of States. This is because amnesties or similar mechanisms have been
one of the obstacles cited by States in order not to comply with their obligation to investigate,
prosecute and punish, as appropriate, those responsible for grave human rights violations. Also,
several States Parties of the Organization of American States, through their highest courts of
justice, have incorporated the said standards, observing their international obligations in good
faith.458 Consequently, for purposes of this case, the Court reiterates459 the inadmissibility of
“amnesty provisions, provisions on prescription, and the establishment of exclusions of
responsibility that seek to prevent the investigation and punishment of those responsible for
grave human rights violations such as torture, summary, extrajudicial or arbitrary execution,
and forced disappearance, all of which are prohibited because they violate non-derogable rights
recognized by international human rights law.”460
284. However, contrary to the cases examined previously by this Court, the instant case deals
with a general amnesty law that relates to acts committed in the context of an internal armed
conflict. Therefore, the Court finds it pertinent, when analyzing the compatibility of the Law of
General Amnesty for the Consolidation of Peace with the international obligations arising from
the American Convention and its application to the case of the Massacres of El Mozote and
Nearby Places, to do so also in light of the provisions of Protocol II Additional to the 1949
Geneva Conventions, as well as of the specific terms in which it was agreed to end hostilities,
which put an end to the conflict in El Salvador and, in particular, of Chapter I (“Armed Forces”),
section 5 (“End to impunity”), of the Peace Accord of January 16, 1992.
285.
According to the international humanitarian law applicable to these situations, the
enactment of amnesty laws on the conclusion of hostilities in non-international armed conflicts
are sometimes justified to pave the way to a return to peace. In fact, article 6(5) of Protocol II
Additional to the 1949 Geneva Conventions establishes that:
At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible
amnesty to persons who have participated in the armed conflict, or those deprived of their
liberty for reasons related to the armed conflict, whether they are interned or detained.
286. However, this norm is not absolute, because, under international humanitarian law,
States also have an obligation to investigate and prosecute war crimes.461 Consequently,
457
Cf. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Furundžija. Judgment of 10
December, 1998. Case No. IT-95-17/1-T, para. 155; S.C.S.L., Prosecutor v. Gbao, Decision No. SCSL-04-15-PT-141,
Appeals Chamber, Decision on Preliminary Motion on the Invalidity of the Agreement between the United Nations and the
Government of Sierra Leone on the Establishment of the Special Court, 25 May 2004, para. 10; S.C.S.L., Case of
Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, Judgment of the Trial Chamber, 25 February 2009, para.
54, and Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, Trial Chamber, Sentencing Judgment, 8 April
2009, para. 253. In this regard, see also: Agreement between the Lebanese Republic and the United Nations regarding
the establishment of a special tribunal for Lebanon, signed on January 23 and February 6, 2007, respectively, Article 16
and the Statute of the Special Tribunal for Lebanon approved by resolution 1757 of the Security Council of the United
Nations. U.N Doc.S/RES/1757, of 30 May 2007, Article 6; State of the Special Tribunal for Sierra Leona, of 16 January
2002, Article 10; Agreement between the United Nations and the Royal Government of Cambodia concerning the
Prosecution under Cambodian law of crimes committed during the Period of Democratic Kampuchea, of 6 March 2003,
Article 11, and Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of
Crimes Committed during the Period of Democratic Kampuchea, with inclusion of amendments as promulgated on
October 27, 2004 (NS/RKM,1004/006), new Article 40.
458
Cf. Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil, paras. 147 to 182, and Case of Gelman v.
Uruguay, paras. 183 to 229.
459
Cf. Case of the Serrano Cruz Sisters v. El Salvador. Merits, reparations and costs, para. 172, and Case of
Contreras et al. v. El Salvador, para. 174.
460
Case of Barrios Altos v. Peru. Merits, para. 41, and Case of Gelman v. Uruguay, para. 225.
461
Cf. Rule 159: “[a]t the end of hostilities, the authorities in power must endeavor to grant the broadest possible
amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for
reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war
crimes.” In this regard, the International Committee of the Red Cross has stated that “[w]hen Article 6(5) of Additional
Protocol II was adopted, the USSR stated, in its explanation of vote, that the provision could not be construed to enable
war criminals, or those guilty of crimes against humanity, to evade punishment. The ICRC shares this interpretation.
94
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