3
forcefully when superior values (such as truth and justice) are at stake. In reality, what
came to be called laws of amnesty, and particularly the perverse modality of the socalled laws of self-amnesty, even if they are considered laws under a given domestic
legal order, are not so in the ambit of the International Law of Human Rights.
7.
This same Court pondered, in an Advisory Opinion of 1986, that the word "laws"
in the terms of Article 30 of the American Convention means a legal norm of a general
character, tied to the general welfare, formulated according to the procedure
constitutionally established, by legislative organs constitutionally foreseen and
democratically elected 9. Who would dare to suggest that a "law" of self-amnesty
satisfies all these requisites? I cannot see how to deny that "laws" of this kind are
devoid of a general character, as they are measures of exception. And surely they do
not contribute at all to the common good, but on the contrary: they appear as mere
subterfuges to cover up grave violations of human rights, to obstruct the knowledge of
truth (however painful this latter might be) and to hinder the very access to justice on
the part of the victimized ones. In sum, they do not satisfy the requisites of "laws" in
the ambit of the International Law of Human Rights.
8.
In my Dissenting Opinion in the case of El Amparo (Interpretation of Sentence,
1997) 10, I sustained the thesis that a State can have its international responsibility
engaged "by the simple approval and promulgation of a law in conflict with its
conventional international obligations of protection" (pars. 22-23), - as it happens, in
the present case of Barrios Altos, with the so-called laws of self-amnesty. While such
laws remain in force, there occurs a continuing situation of violation of the relevant
norms of the human rights treaties which bind the State at issue (in the present case,
Articles 8 and 25, in connection with Articles 1(1) and 2 of the Convention).
9.
As I saw it fit to insist in my recent Concurring Opinion in the case "The Last
Temptation of Christ" (Olmedo Bustos and Others) (2001) 11, there is a long and vast
international case-law clearly oriented in the sense that "the origin of the international
responsibility of the State may rest on any act or omission of any of the powers or
agents of the State (whether of the Executive, or of the Legislative, or of the Judiciary)"
(par. 16). And I stressed, further on, in conformity with a general principle of the law
on the international responsibility,
- "(...) The independence of the characterization of a given act (or omission) as
illicit in international law from the characterization - similar or otherwise - of such act by
the domestic law of the State. The fact that a given State conduct is in conformity with
the provisions of domestic law, or even that it is required by this latter, does not mean
that its internationally illicit character can be denied, whenever it constituted a violation
of an international obligation (...)" (par. 21).
9
.
Inter-American Court of Human Rights (IACtHR), Advisory Opinion on The Expression "Laws" in
Article 30 of the American Convention on Human Rights (1986), Series A, n. 6. The Court rightly observed
that the word "laws" in the context of a system of human rights protection "cannot be dissociated from the
nature and the origin of such system", as "the protection of human rights must necessarily comprise the
concept of restriction to the exercise of State power" (par. 21).
10
IACtHR, Resolution of 16.04.1997, Series C, n. 46.
11
IACtHR, Judgment of 05.02.2001, Series C, n. 73.
.
.