48
101. On the other hand, the Court points out that in 1998, when the application of
Decree Law No. 2.191 was confirmed in the instant case (supra para. 82(21)), the
Charters of the International Criminal Tribunals for the Former Yugoslavia (May 25,
1993) and Rwanda (November 9, 1994) had already been adopted, and articles 5
and 3 thereof reaffirm that murder is a serious international law crime. This criterion
was confirmed by Article 7 of the Rome Statute (July 17, 1998) which created the
International Criminal Court.
102. Now the Court must analyze whether the circumstances surrounding the
death of Mr. Almonacid-Arellano could constitute a crime against humanity, as
defined in the year 1973 (supra para. 99).
103. As it is evident from the chapter of Proven Facts (supra paras. 82(3) to
82(7)), between September 11, 1973 and March 10, 1990 Chile was ruled by a
military dictatorship which, by developing a state policy intended to create fear,
attacked massively and systematically the sectors of the civilian population that were
considered as opponents to the regime. This was achieved by a series of gross
violations of human rights and of international law, among which there are at least
3,197 victims of summary executions and forced disappearances, and 33,221
detainees, most of whom were tortured (supra para. 82(5)). Likewise, the Court
considered proven that the most violent time of that repressive period was that of
the first months of the de facto government. Approximately 57 percent of all deaths
and disappearances occurred during the first months of the dictatorship. The
execution of Mr. Almonacid-Arellano took place precisely during that time.
104. Considering the aforesaid, the Court determines that there is sufficient evidence
to reasonably state that the extra-legal execution committed by State agents in
detriment of Mr. Almonacid-Arellano, who was a member of the Communist Party
and a candidate to preside the said party, as well as the Provincial Secretary of the
Central Unitaria de Trabajadores (Labor Central Union) and Magisterio (SUTE) Union
Leader -all of which was considered a threat to the dictatorship doctrine- was
Even when the Nuremberg Tribunal was established to prosecute the principal war criminals
of the European Axis countries for the crimes committed before or during the Second World
War, the Court points out that the universal validity of the principles regarding crimes
against humanity was subsequently confirmed by, inter alia, Resolution No. 95 of the
General Assembly of the United Nations (December 11, 1946) and afterwards, by the
International Law Commission. Therefore, the responsibility for crimes against humanity
cannot be restricted to nationals of some countries and only to those acts that were
committed during the Second World War. […]
[…]
The Court points out that even though the acts committed by Kolk and Kislyiy might have
been considered crimes under the Soviet laws then in force, the Estonian courts considered
them as crimes against humanity under international law at the time of their commission.
The Court considers that there is no reason to conclude otherwise. […] Therefore, the Court
considers that the allegations of the appellants do not have sufficient grounds to state that
their acts did not constitute crimes against humanity at the moment of their commission.
[…]
Furthermore, there is no statutory limitation that may be applicable to the crimes against
humanity, irrespective of the date on which they were committed. […] The Court does not
find any reason whatsoever to challenge the interpretation and application of the domestic
law that the Estonian courts made in the light of the applicable international law provisions.
To conclude, the allegations of the petitioners are held to be groundless and must be
dismissed.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents