CONCURRING OPINION OF JUDGE A.A. CANÇADO-TRINDADE
1.
I have voted in favor of the adoption of the Judgment rendered in the Case of
Almonacid-Arellano et al. v. Chile by the Inter-American Court of Human Rights.
Given the importance of the issues considered in this Judgment by the Court, I feel
obliged to append this Opinion, containing my personal reflections, as the basis of
my position on the matters addressed by the Court. I shall focus on three main
points, as follows: a) the lack of legal validity of self-amnesties; b) self-amnesties
and the obstruction and denial of justice: extension of the material scope of jus
cogens prohibitions; and c) the conceptualization of crimes against humanity at the
confluence of International Human Rights Law and International Criminal Law.
I.
Lack of legal validity of Self-amnesties
2.
This Judgment rendered by the Inter-American Court in the Case of
Almonacid-Arellano et al. v. Chile follows the line of reasoning first introduced in its
historic Judgment (of March 14, 2001) in the Case of Barrios Altos v. Peru, in which
the Court stated that:
“This Court considers that all 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, extra-legal, summary or
arbitrary execution and forced disappearance, all of them prohibited because they
violate non-derogable rights recognized by International Human Rights Law” (para. 41).
The Judgment rendered by the Court in the Case of Barrios Altos, -in which there
was acquiescence on the part of the Peruvian State-, has become well-known and
renowned within international legal circles throughout the world as it was the first
time an international court held that a self-amnesty law had no legal effects. In its
Judgment in the Case of Barrios Altos, the Court found, for the first time in history
and categorically, that:
“Owing to the manifest incompatibility of self-amnesty laws and the American
Convention on Human Rights, the said laws lack legal effect and may not continue to
obstruct the investigation of the grounds (…) or the identification and punishment of
those responsible (…)” (para. 44).
3.
Even though in the Case of Almonacid-Arellano et al. v. Chile the State did
not acquiesce to the claim, it has adopted a positive and constructive approach to
the proceedings before the Court (as evidenced by this Judgment) insofar as it has
not disputed that (self-amnesty) Decree Law No. 2.191 of April 18, 1978 violates the
American Convention (para. 90) and, moreover, the State itself has admitted that “in
principle, amnesty or self-amnesty laws are contrary to the rules of International
Human Rights Law” (para. 112). In this Judgment, the Court has rightly
characterized Decree Law No. 2.191 as a self-amnesty law, enacted by the “military
regime in order to shield its own crimes,” perpetrated during the curfew imposed
between September 11, 1973 and March 10, 1978, “from the hands of justice”
(paras. 119 and 81(10)).