16
51.
When underlining the broad scope of Article 1(1) of the American Convention,
the Court has immediately after affirmed the obligation of the States Parties to
investigate human rights violations and to prosecute and punish the responsible
participants (para. 160). The fulfillment of such an obligation gains importance
before the seriousness of the facts of this case of La Cantuta, eloquently emphasized
at the very beginning of an account in the case:
"As opposed to what is expected, impunity does not conceal the crime, it
increases it. The chain of crimes by the concealers is added to the crime committed by
the perpetrators – material and intellectual. Kidnapping, cold-blooded murdering,
concealed burial and body incineration are completed by lying, denial and delay in
justice administration. Except for honorable cases, prosecutors and judges, non
executive members, members of congress, military and civil governors have become
part of the large file of the accessory impunity with which it is expected to return the
case of the nine students and the professor of the Universidad de la Cantuta to the mass
grave, cold-blooded murdered at the dawn of July 18, 1992.”30
52.
It was a State crime which involved, with animus agressionis, a chain of
command, composed by several agents of the public power (of the different State
powers), from the President of the Republic to the perpetrators of the extra-legal
executions and other human rights violations. When analyzing the legal
consequences of the said violations, this Court has pointed out, in this Judgment of
the case La Cantuta, that
"Before the nature and seriousness of the facts, and within a context of
systematic violation of human rights, the need to eradicate impunity appears before the
international community as a duty of interstate cooperation for such effects. Access to
justice constitutes an imperative rule of International Law and, as such, it generates
erga omnes obligations for the States to adopt the necessary provisions so as not to
leave those violations without punishment, whether exercising its jurisdiction to apply its
domestic law and International Law to prosecute and, eventually, penalize those
responsible for such facts, or cooperating with other States that do so or attempt to do
so. The Court remembers that, under the mechanism of collective guarantee set forth in
the American Convention, jointly with regional and universal international obligations on
the matter, the States Parties of the Convention must cooperate with each other in that
sense” (para. 160).31
53.
Consequently, the broadening of the material content of the jus cogens is
consolidated in this Judgment, as it encompasses the right of access to justice lato
sensu, without which there is simply no Constitutional State. I honestly hope that the
Court maintains this position in the future, and does not admit any attempt to stop
its guaranteeing and emancipating jurisprudence of the human being regarding the
matter, as this scope of protection of the human being does not imply nor admits
steps back. I sincerely hope that the Court always keeps progressing in its
jurisprudential construction regarding the imperative rules of International Law.
54.
As a reaction of the universal legal conscience (which to me constitutes the
ultimate material source of the whole Law), in our times a truly universal legal
system of absolute prohibition of torture, of forced disappearances of people and of
summary and extra-legal executions has been constituted. The said prohibition
belongs to the scope of jus cogens. And said crimes against humanity (located in the
30
31
APRODEH, De la Tierra Brotó la Verdad..., op. cit. supra No. (7), p. 5.
And also cf. paras. 239-241, regarding the intangibility of imperative rules of International Law
(jus cogens) and the role of education in human rights.
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