83
152.
This Court had stated earlier in the Case of Barrios Altos that
This Court considers that all amnesty provisions, provisions on prescription and the establishment
of measures designed to eliminate responsibility are inadmissible, because they are intended to
prevent the investigation and punishment of those responsible for serious human rights violations
such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of
them prohibited because they violate non-derogable rights recognized by international human
rights law.124
153. Specifically, in relation with the concept of double jeopardy, the Court has recently
held that the non bis in idem principle is not applicable when the proceeding in which the
case has been dismissed or the author of a violation of human rights has been acquitted, in
violation of international law, has the effect of discharging the accused from criminal
liability, or when the proceeding has not been conducted independently or impartially
pursuant to the due process of law.125 A judgment issued in the circumstances described
above only provides "fictitious" or "fraudulent" grounds for double jeopardy.126
154. Therefore, in its complaint against the alleged instigators of the crimes (supra, para.
80.82), who were discharged by the military courts, the Procuraduría Ad Hoc (Ad Hoc
Prosecutor’s Office) deemed it inadmissible to consider the order for dismissal of the case
issued by the military judges in the course of a proceeding aimed at granting impunity as a
legal obstacle for conducting prosecutions or as a final judgment, since the judges had no
jurisdiction and were not impartial, and thus the order may not provide grounds for double
jeopardy.
155. In close connection with this, the representatives have requested, based on several
sources of international law, particularly statutes and international criminal court decisions
concerning the requirements to attribute criminal liability to superiors for the acts of their
subordinates, that the Court “ascertains the degrees of involvement in the serious violations
of human rights pursuant to the conventional obligation to punish the perpetrators and
instigators of such acts.” In its answer to the application, the State pointed out that it
“understands that the duty to administer justice involves investigating and punishing any
individual who had a criminal conduct in the events of La Cantuta. In this respect, the State
will hear and abide by the Court’s decision as regards the investigation, identification and
punishment of those responsible for issuing orders to commit international crimes such as
those involved in the instant case." In its final arguments, the State asserted that the
events recognized "constitute wrongful acts under international law [and] crimes under
domestic law and amount to international crimes that the State must prosecute."
156. In this regard, it is worth noting that the Court is not a criminal court with power to
ascertain liability of individual persons for criminal acts.127 International liability of the
124
Cf. Case of Barrios Altos. Judgment of March 14, 2001. Series C No. 75. Para. 41.
125
Cf. Case of Almonacid-Arellano et al., note 6, para. 154. See also, U.N., Rome Statute of the International
Criminal Courts), approved by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment
of an International Criminal Court U.N. Doc. A/CONF. 183/9 July 17, 1998, Article 20; Statute of the International
CriminalTribunal for the former Yugoslavia, S/Res/827, 1993, Article 10, and the Statute of the International
Criminal Tribunal for Rwanda, S/RES/955, November 8, 1994, Article 9.
126
Cf. Case of Almonacid-Arellano et al., note 6, para. 154; Case of Gutiérrez-Soler. Judgment of September
12, 2005. Series C No. 132, para. 98, and Case of Carpio-Nicolle et al. Judgment of November 22, 2004. Series C
No. 117, para. 131.
127
Cf. Case of the Pueblo Bello Massacre, supra note 3, para. 122; Case of Raxcacó-Reyes. Judgment of
September 15, 2005. Series C No. 133, para. 55, and Case of Fermín Ramírez. Judgment of June 20, 2005. Series
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