2
"(...) certain acts that were classified as inhuman or degrading in the past, but not as
torture, could be classified otherwise in the future, that is, as torture, since the response
to the increasing demands for protection of human rights and fundamental freedoms,
should be a stricter approach and treatment ofthe violations of the core values of
democratic societies (...). Based on the aforementioned, we can conclude that an
international legal regime has been developed which establishes the absolute prohibition
of any type of acts of torture" (paras. 99 and 103).
Some years before these significant obiter dicta of the Court, I referred to the need
to develop the Court jurisprudence on jus cogens prohibitions, in my Separate
Opinions on the case of Blake v. Guatemala (preliminary objections, Judgment of
July 02, 1996;2 on the merits, Judgment of January 24, 1998; 3 and reparations,
Judgment of January 22, 1999;4); I later issued my reaffirming Concurring Opinion
on the Judgment (of March 14, 2001) in the case of Barrios Altos v. Peru,5 and the
Separate Opinion on the Judgment (preliminary exceptions, Judgment of September
01, 2001) in the case of Hilaire v. Trinidad and Tobago;6 in my Concurring Opinion
on the Judgment (of November 27, 2003) in the case of Maritza Urrutia v.
Guatemala;7 in my Separate Opinion on the Judgment in the case of GómezPaquiyauri Brothers v. Peru (of July 08, 2004);8 and my Dissenting Opinion in the
case of the Serrano Cruz Sisters v. El Salvador (Judgment on preliminary exceptions
of November 23, 2004).9
6.
In the Judgment of September 07, 2004, in the case of Tibi v. Ecuador, the
Court reaffirmed that:
"There is an international legal regime that absolutely prohibits any type of torture,
whether physical or psychological; a regime that today is part of the realm of the jus
cogens. The prohibition against torture is complete and irrevocable, even under the most
difficult circumstances, such as war, threat of war, fight against terrorism or any other
offenses, state of siege or emergency, domestic unrest or conflict, suspension of
constitutional guarantees, domestic political instability or other public disasters or
emergencies" (para. 143).10
The Court restated this obiter dictum in this Judgment on the case of Baldeón-García
(para. 117).
7.
The Court broadened the material scope of the jus cogens in its landmark
Advisory Opinion No.18 (of September 17, 2003), on the Juridical Condition and
Rights of Undocumented Migrants, to include the basic principle of equality and non2
Paras. 11 and 14 of the Opinion.
3
Paras. 15, 17, 23, 25 and 28 of the Opinion.
4
Paras. 31, 40 and 45 of the Opinion.
5
Paras. 10, 11 and 25 of the Opinion.
6
Para. 38 of the Opinion.
7
Paras. 6, 8- 9 and 12 of the Opinion.
8
Paras. 1, 37, 39, 42 and 44 of the Opinion.
9
Paras. 2, 32 and 39 -41 of the Opinion.
10
In my Separate Opinion in the case of Tibi, I referred to the importance of the absolute nature of
said prohibition and I examined the evolution of contemporary international judgments (paras. 26 and 3032 of the Opinion.