51
pursuant to international law.”134 Indeed, the Charter for the Special Tribunal for
Sierra Leona stated that the amnesty granted to persons accused of crimes against
humanity, which are violations of Article 3 of the Geneva Conventions and Additional
Protocol II,135 as well as of other serious violations of international humanitarian law,
“shall not be an impediment to subject [them] to trial.”
110. The obligation that arises pursuant to international law to try, and, if found
guilty, to punish the perpetrators of certain international crimes, among which are
crimes against humanity, is derived from the duty of protection embodied in Article
1(1) of the American Convention. This obligation implies the duty of the States
Parties to organize the entire government system, and in general, all agencies
through which the public power is exercised, in such manner as to legally protect the
free and full exercise of human rights. As a consequence of this obligation, the
States must prevent, investigate, and punish all violations of the rights recognized
by the Convention and, at the same time, guarantee the reinstatement, if possible,
of the violated rights, and as the case may be, the reparation of the damage caused
due to the violation of human rights. If the State agencies act in a manner that such
violation goes unpunished, and prevents the reinstatement, as soon as possible, of
such rights to the victim of such violation, it can be concluded that such State has
not complied with its duty to guarantee the free and full exercise of those rights to
the individuals who are subject to its jurisdiction.136
111. Crimes against humanity give rise to the violation of a series of undeniable
rights that are recognized by the American Convention, which violation cannot
remain unpunished. The Court has stated on several occasions that the State has the
duty to prevent and combat impunity, which the Court has defined as “the lack of
investigation, prosecution, arrest, trial, and conviction of those responsible for the
violation of the rights protected by the American Convention.”137 Likewise, the Court
has determined that the investigation must be conducted resorting to all legal means
available and must be focused on the determination of the truth and the
investigation, prosecution, arrest, trial, and conviction of those persons that are
responsible for the facts, both as perpetrators and instigators, especially when State
agents are or may be involved in such events.138 In that respect, the Court has
pointed out that those resources which, in view of the general conditions of the
134
Cf. UN Report of the Secretary General S/2000/915 on the establishment of a Tribunal for Sierra
Leona, of October 4, 2000, para. 24.
135
Cf. UN Additional Protocol to the Geneva Conventions of August 12, 1949 regarding the
protection of victims of non-international armed conflicts (Protocol II).
136
Cf. Case of Velásquez-Rodríguez. Judgment of July 29, 1988. Series C No. 4, para. 166, and Case
of Godínez-Cruz. Judgment of January 20, 1989. Series C No. 5, para. 175.
137
Cf. Case of the Ituango Massacres, supra note 14, para. 299; Case of the “Mapiripán Massacre,”
Judgment of September 15, 2005. Series C No. 134, para. 237; Case of the Moiwana Community,
Judgment of September 15, 2005. Series C No. 134, para. 203.
138
Cf. Case of Ximenes-Lopes, supra note 14, para. 148; Case of Baldeón-García, supra note 14,
para. 94; and Case of the Pueblo Bello Massacre, Judgment of January 31, 2006. Series C No. 140, para.
143.
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