lucid contemporary legal authors, even in relation to “self-amnesties,” as noted as
follows:
“The right of access to justice is expressed in human rights treaties in the
20
interrelated provisions for the right to a hearing and the right to an effective remedy .”
21.
Ultimately, self-amnesties violate the right to know the truth and the right to
justice. They callously disregard the terrible suffering of the victims and hinder the
right to appropriate reparations. Their vicious effects, in my view, permeate the
whole social body, with the ensuing loss of faith in human justice and true values
and a perverse distortion of the purpose of the State. Originally created to serve the
common good, the State becomes an entity that exterminates members of certain
sectors of the population (the most precious constituent element of the State itself,
its human substratum) with total impunity. From an entity designed to serve the
common good, it becomes an entity responsible for truly criminal practices,
undeniable State crimes.
22.
It is clear from this Judgment rendered by the Court (para. 152) in the Case
of Almonacid-Arellano that jus cogens transcends the law of treaties to include
general International Law. And it could not be otherwise because of its
conceptualization as peremptory law. The Inter-American Court significantly finds, in
the cas d'espèce, that
“The State may not invoke any domestic law or provision to exonerate itself
from the Court's order to have a criminal court investigate and punish those responsible
for Mr. Almonacid-Arellano’s death. The Chilean State may not apply Decree Law No.
2.191 again, on account of all the considerations presented in this Judgment, insofar as
the State is under an obligation to set aside said Decree Law (supra para. 144).
Additionally, the State may not invoke the statute of limitations, the non-retroactivity of
criminal law or the principle of ne bis in idem to decline its duty to investigate and
punish those responsible” (para. 151).
23.
Hence operative paragraph No. 3 of this Judgment, which states that “insofar
as it was intended to grant amnesty to those responsible for crimes against
humanity, Decree Law No. 2191 is incompatible with the American Convention and,
therefore, it has no legal effects.” Inasmuch as the aforesaid Decree Law has no
legal effects in the light of the American Convention, and in order to put an end to
the violation of Articles 1(1) and 2, as well as of Articles 25 and 8 as established by
the Court (operative paragraph No. 2), the respondent State may not formally
maintain said decree law in force as part of its domestic law.
24.
As a member of this Court, I have always emphasized the interrelation, at the
ontological and hermeneutical level, between Articles 25 and 8 of the American
Convention (as in, inter alia, my Separate Opinion -paras. 28 to 65- in the Case of
the Pueblo Bello Massacre v. Colombia, Judgment of January 31, 2006) in the
conceptual construction of the right of access to justice (right to effective
jurisdictional protection, the right to Law) as a jus cogens imperative. In addition,
since my early years in this Court, I have consistently emphasized the interrelation
of the general obligations contained in Articles 1(1) and 2 of the American
Convention, for example, in my Dissenting Opinion (paras. 2-11) in the Case of El
Amparo v. Venezuela, Judgment on Reparations of September 14, 1996. In another
20
.
i.e. the rights enshrined in Articles 8 and 25 of the American Convention; cf. ibid., p. 282
(emphasis added), and cf. pp. 284 and 288-289.