53
humanity in the instant case, draws the attention to the fact that other crimes
against humanity such as forced disappearance, torture, and genocide, among
others, are not excluded from such amnesty.
117.
The Court has confirmed on several occasions that:
Under the law of nations, a customary law prescribes that a State that has signed an
international agreement must introduce into its domestic laws whatever changes are
needed to ensure execution of the obligations it has undertaken. This principle is
universally valid and has been characterized in case law as an evident principle ("principe
allant de soi"; Exchange of Greek and Turkish populations, avis consultatif, 1925, C.P.J.I.,
Series B, No. 10, p. 20). Accordingly, the American Convention stipulates that every
State Party is to adapt its domestic laws to the provisions of that Convention, so as to
143
guarantee the rights embodied therein.
118. Pursuant to Article 2 of the Convention, such adaptation implies the adoption
of measures following two main guidelines, to wit: i) the annulment of laws and
practices of any kind whatsoever that may imply the violation of the rights protected
by the Convention, and ii) the passing of laws and the development of practices
tending to achieve an effective observance of such guarantees.144 It is necessary to
reaffirm that the duty stated in i) is only complied when such reform is effectively
made.145
119. Amnesty laws with the characteristics as those described above (supra para.
116) leave victims defenseless and perpetuate impunity for crimes against humanity.
Therefore, they are overtly incompatible with the wording and the spirit of the
American Convention, and undoubtedly affect rights embodied in such Convention.
This constitutes in and of itself a violation of the Convention and generates
international liability for the State.146 Consequently, given its nature, Decree Law No.
2.191 does not have any legal effects and cannot remain as an obstacle for the
investigation of the facts inherent to the instant case, or for the identification and
punishment of those responsible therefor. Neither can it have a like or similar impact
regarding other cases of violations of rights protected by the American Convention
which occurred in Chile.147
120. On the other hand, even though the Court notes that Decree Law No. 2.191
basically grants a self-amnesty, since it was issued by the military regime to avoid
judicial prosecution of its own crimes, it points out that a State violates the American
Convention when issuing provisions which do not conform to the obligations
143
Cf. Case of Garrido and Baigorria. Reparations (art. 63(1) of the American Convention on Human
Rights). Judgment of August 27, 1998. Series C No. 39, para. 68; Case of Baena Ricardo et al. Judgment
of February 2, 2001. Series C No. 72, para. 179.
144
Cf. Case of Ximenes-Lopes, supra note 14, para. 83; Case of Gómez-Palomino. Judgment of
November 22, 2005. Series C No. 136, para. 91; and Case of the “Mapiripán Massacre”, supra note 137,
para. 109.
145
Cf. Case of Raxcacó-Reyes. Judgment of September 15, 2005. Series C No. 133. para. 87; Case
of the IndigenousYakye Axa Community, supra note 5, para. 100; and Case of Caesar. Judgment of March
11, 2005. Series C No. 123, paras. 91 and 93.
146
Cf. Case of Barrios Altos. Interpretation of the Judgment on the Merits. (art. 67 of the American
Convention on Human Rights). Judgment of September 3, 2001. Series C No. 83, para. 18.
147
Cf. Case of Barrios Altos, supra note 140, para. 44.
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