35
it the nomen iuris of treason, a common but exceptionally serious crime that is
universally condemned in all international fora. The active agent of this crime
could be anyone, whatever his nationality, so long as it is committed on
Peruvian soil”;
d)
under Article 78 of the Code of Military Justice, the crime of treason
can be committed by persons who are Peruvian citizens –whether by
birth or by naturalization- or by anyone subject to Peruvian law. The
latter group refers to “those persons who enjoy the protection of
Peruvian laws [… in other words] anyone who is on national soil,
whether he be Peruvian or foreign,” and can even include illegal aliens,
such as the persons in this case;
e)
during the course of the domestic criminal proceedings, none of the
attorneys representing the Chilean nationals proved that they were
aliens;
f)
because the crimes in this case were “crimes of lese humanité
committed on [Peruvian] soil” and against the State and its civilian
and military population, those responsible must be prosecuted in
accordance with domestic criminal law; to do otherwise would be to
“violate the principle of the sovereignty and independence of States”;
g)
under the Code of Military Justice, Decree-Law No. 25,659, and the
Penal Code, “no distinction is made between Peruvian and foreign
perpetrators.”
Therefore, the right recognized in Article 20 of the
Convention and Article 15 of the Universal Declaration has not been
violated, since “the nationality of [the alleged victims] in no way
influenced their trial and the sentence imposed.”
99.
This Court has defined nationality as “the political and legal bond that links a
person to a given state and binds him to it with ties of allegiance and loyalty,
entitling him to diplomatic protection from that state.” If an alien acquires this link
to a given state, it is understood that he has satisfied the conditions that the State
sets to ensure that an effective link exists between the candidate for citizenship and
the system of values and interests of the society with which he seeks to fully
associate himself; it is natural, then, that the “conditions and procedures for its
acquisition should be governed primarily by the domestic laws of that state.”82
100. This Court has also held that the right to nationality recognized in Article 20
has two aspects: first, it “provides the individual with a minimal measure of legal
protection in international relations through the link his nationality establishes
between him and the state in question; and second, the protection therein accorded
the individual against the arbitrary deprivation of his nationality, without which he
would be deprived for all practice purposes of all of his political rights as well as of
those civil rights that are tied to the nationality of the individual.”83
82.
Cf. Proposed amendments to the naturalization provisions of the Constitution of Costa Rica,
Advisory Opinion OC-4/84 of January 19, 1984. Series A No. 4, paras. 35-36; see also Nottebohm Case
(second phase), Judgment of April 6, 1955, I.C.J. Reports 1955, p. 24.
83.
Proposed amendments to the naturalization provisions of the Constitution of Costa Rica, supra
note 82, para. 34.