1998, the date on which it accepted the jurisdiction of the Inter-American Court. In this regard,
the Court will examine every exclusion of responsibility alleged by Brazil to justify the failure
to investigate, prosecute and punish those responsible for the torture and murder of Vladimir
Herzog, in order to establish their incompatibility with crimes against humanity in this case.
259. First, it is important to reiterate, pursuant to the Court’s previous considerations (supra
paras. 211 to 228) that the peremptory norm of jus cogens prohibiting crimes against
humanity existed and was binding for the State of Brazil at the time of the facts. The Court
repeats that the main consequence of a peremptory norm of international law is that it does
not admit any decision to the contrary and that it can only be amended by a subsequent norm
of general international law of the same nature. The second consequence of a peremptory
norm is that it involves obligations erga omnes. As previously indicated, the first obligation of
States under this norm is to prevent this type of crime from occurring. Consequently, States
must ensure that such conducts are criminally prosecuted and the authors punished. In the
same way, the absence of a formal definition in domestic law of conducts that reach the
threshold of crimes against humanity does not exclude the person who committed the act
from his liability under international law and the universal jurisdiction in relation to the
perpetrators of such crimes (supra para. 231). Other consequences that will not be examined
in detail in this judgment are the non-applicability of immunities and the excuse of “due
obedience.” Furthermore, the Court will not refer to the non-derogability of this prohibition in
states of emergency.
260. Added to these basic clarifications, the Court has underlined the obligation to
investigate and punish serious human rights violations and eventual crimes against
humanity. 254 In light of the foregoing, the Court will now examine the reasons why, in this
case, the State of Brazil is prevented from using devices that permit the impunity of crimes
against humanity, such as statutory limitations, the principle of ne bis in idem, amnesty laws,
and any other similar provision that excludes responsibility.
i)
Imprescriptibility of crimes against humanity
261. The application of statutory limitations in criminal matters results in the extinction of
the possibility of punishment owing to the passage of time and, in general, limits the State’s
punitive power to prosecute unlawful conduct and punish its authors. It is a guarantee that
must be duly respected by a judge with regard to anyone accused of a crime. Nevertheless,
exceptionally, 255 the application of a statute of limitations to the criminal action is inadmissible
and inapplicable in the case of serious human rights violations under international law. The
Court’s consistent case law has always indicated this. 256
262. In addition, the non-applicability of statutory limitations is founded on the fact that
certain contexts of institutional violence – added to certain obstacles to the investigation –
may result in significant difficulties for the investigation of some human rights violations. 257
254
Cf. Case of Gomes Lund et al. ("Guerrilha do Araguaia") v. Brazil, para. 137.
The Court has considered that “serious human rights violations” have their own connotation and consequences.
Cf. Case of Escher et al. v. Brazil. Monitoring compliance with judgment. Order of the Inter-American Court of Human
Rights of June 19, 2012, para. 20.
255
256
Cf. Case of Barrios Altos v. Peru. Merits, para. 41; Case of Almonacid Arellano v. Chile, para. 110; Case of the La
Rochela Massacre v. Colombia, para. 294; Case of Albán Cornejo v. Ecuador. Merits, reparations and costs. Judgment
of November 22, 2007. Series C No. 171. para. 111; Case of Vera Vera et al. v. Ecuador. Preliminary objection,
Merits, reparations and costs. Judgment of May 19, 2011. Series C No. 226, párr 117.
257
“The protection of human rights against particularly serious, inadmissible violations that might go unpunished –
thus diluting the duty to administer criminal justice stemming from the guarntee obligation of the State – has caused
certain facts to be excluded from the ordinary statute of limitations system, even a more strict statute of limitations
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