6
9.140/95 “signed the responsibility of the State for the deaths, guaranteed
compensatory reparation, and principally, made official the historical recognition
that these Brazilians [...] died fighting as political opponents of a regime that
arose violating the democratic constitutionality erected in 1946.”426
16.
Thus, given that the Commission noted the cited recognition, the
representatives considered that this has full legal effects to the proceedings
before the Court and requested that the Court note the admission of the facts and
acceptance of responsibility made by Brazil, and that its reach be incorporated
into this Judgment. They stressed, however, the limited stamp of said factual
recognition and fought for more thorough analysis of the fact in order to obtain
statements of factual recognition of the State.
17.
The Court accepted the recognition of the facts and acceptance of
responsibility made by the State and recognized their efforts and good faith at
present, however it understood that such recognition did not occur in a full and
effective manner in regard to the violations brought to be considered by the
Court. Instead, the State’s acknowledgment holds significant limitations, so much
so that its current defense is currently that of not permitting the investigation,
prosecution, and punishment of those responsible for the implementation of the
Amnesty Law in interpretation judged incompatible with the Convention, devices
that lack legal effect.
V.
JURISDICTION TO CLASSIFY CRIMES SUCH AS CRIMES AGAINST
HUMANITY
18.
Nevertheless, the question on the merits in the Case of the Guerrilha do
Araguaia does not deal with the discussion on the specific jurisdiction of the Court
to proceed with the material expansion of jus cogens, I make some comments on
the possibility and relevance of examining the crimes against humanity. In the
case Goiburú, the judgment of the case Almonacid demonstrated that jus cogens
transcends the Law of Treaties and encompasses International Law in general,
including International Law of Human Rights.
19.
It defies the purpose for which the Court was established in not allowing
that certain rights be regarded as imperative. The Court can, and beyond this,
has the obligation to attribute jus cogens nature to those rights most dear to the
person, the core components of protection ("hard core of human rigths"), so as to
protect and comply with the objective of protecting human rights covered by the
American Convention.
20.
The notion of the crime against humanity was established in the beginning
of the last century, being consubstantiated in the preamble of the Hague
Convention on the Laws and Customs of War (1907), under which States Parties
submit themselves to the guarantees and the rule of international law principles
advocated by the established customs among civilized nations, by the laws of
humanity, and the dictates of public conscience.427
426
Special Secretariat of Human Rights. Right to Memory and Truth, op. Cit., p. 30.
427
Cf. Case of Almonacid Arellano et al. versus Chile. Preliminary Objections, Merits, Reparations
and Costs. Judgment of September 26, 2006. Series C No. 154, para. 94.
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