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have a duty not to enact laws or adopt measures that could be contrary to the terms
of that Convention. Peru signed and ratified that Convention in exercise of its
sovereignty, thereby undertaking the same obligation to observe its provisions to
which the other States Party to the Convention pledged themselves.
4.
This concurring vote will not repeat what the Court has already held; nor will
it examine and describe Peru’s specific ordinances of Peru. Instead, its purpose is to
analyze in general terms -but always by reference to the Judgment on reparationsthe scope that the Judgment might have in the matter under discussion here, and
the ideas and concerns that, in the undersigned’s opinion, could have informed it.
5.
In exercise of its advisory functions, the Court has previously issued opinions
on laws that could have been in conflict with provisions of the Convention, since
under articles 1 and 2 of the Convention, the States Parties have a duty to respect
the rights and freedoms contained in that international instrument, ensure their free
and full exercise and adopt the measures necessary to make them effective.
Accordingly, it is the duty of those States to refrain from adopting provisions that do
not conform to the object and purpose of the Convention (cf. Certain Attributes of
the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50 and
51 of the American Convention on Human Rights), Advisory Opinion OC-13/93 of
July 16, 1993. Series A No. 13, para. 26; and International Responsibility for the
Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2
of the American Convention on Human Rights), Advisory Opinion OC-14/94 of
December 9, 1994. Series A No. 14, paragraphs 32, 33, 50 and 58.1). These
observations are, of course, refers to the legal effects of laws under international
law, not the domestic legal effects of local laws within the State concerned (cf. OC14/94, para. 34).
6.
In my opinion, the Court’s Judgment does not dismiss the advisability and
need of amnesty provisions that serve to restore peace, under conditions of freedom
and justice, in the wake of the internal conflicts that such measures and others are
intended to help to resolve. Quite the contrary, it is plausible for an effort of this
nature to be carried out under the aegis of the relevant principles of international
and domestic law, with the sectors involved participating and within the framework
of democratic institutions.
7.
The question of amnesty laws has been examined at length in the recent
literature on human rights. By their very nature, such laws imply that conduct prior
to their promulgation will go unpunished. Those who have studied this issue, which
is drawing increasing interest, attempt to balance the exigencies of peace and
reconciliation with the duty to protect human rights and punish those who violate
them, particularly when the violations are extraordinarily egregious -in other words,
crimes of lese humanité such as genocide, extra-judicial execution, torture or forced
disappearance-, while invoking the supposed demands posed by the struggle against
subversion.
Amnesty implies disremembering and remaining silent about acts that, in principle,
are criminal in nature. However, this disremembrance and silence cannot be
permitted to cover up the most severe human rights violations, violations that
constitute an utter disregard for the dignity of the human being and are repugnant
to the conscience of humanity.
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