3
10.
In the said concurring opinion, I referred specifically to Amnesty Law No.
26.479, issued by Peru, corresponding to the category of so-called “self-amnesties”,
which are “promulgated by and for those in power”, and differ from amnesties “that
are the result of a peace process, have a democratic base and a reasonable scope,
that preclude prosecution of acts or behaviors of members of rival factions, but leave
open the possibility of punishment for the kind of very egregious acts that no faction
either approves or views as appropriate” (para. 9)
11.
I am very much aware of the advisability of encouraging civic harmony
through amnesty laws that contribute to re-establishing peace and opening new
constructive stages in the life of a nation. However, I stress – as does a growing
sector of doctrine and also the Inter-American Court – that such forgive and forget
provisions “cannot be permitted to cover up the most severe human rights violations,
violations that constitute an utter disregard for the dignity of the human being and
are repugnant to the conscience of humanity” (Opinion cit., para. 7).
12.
Therefore, the national system of laws that prevents the investigation of
human rights violations and the application of the appropriate consequences does not
satisfy the obligations assumed by a State Party to the Convention to respect the
fundamental rights of all persons subject to its jurisdiction and provide the necessary
means to this end (Article 1(1) and 2). The Court has maintained that the State may
not invoke “difficulties of a domestic nature” to waive the obligation to investigate
the facts that infringed the Convention and punish those who are found criminally
responsible for them.
13.
The principle, in international human rights law and in the most recent
expressions of international criminal law, that the impunity of conduct that most
gravely violates the essential legal rights protected by both forms of international law
is inadmissible, is based on this reasoning. The codification of such conduct and the
prosecution and punishment of the perpetrators – and other participants – is an
obligation of the State, one that cannot be avoided by measures such as amnesty,
prescription, admitting considerations that exclude incrimination, and others that
could lead to the same results and establish the impunity of acts that gravely violate
those primordial legal rights.
Thus, extrajudicial executions, the forced
disappearance of persons, genocide, torture, specific crimes against humanity and
certain very serious human rights violations must be punished surely and effectively
at the national and the international level.
14.
The democratic system calls for a minimum punitive intervention of the State,
which leads to the rational codification of unlawful conduct, but also requires that
specific, extremely serious conduct should invariably be included in the punitive
legislation, effectively investigated and duly punished. This requirement appears to
be a natural counterpart of the principle of minimum punitive intervention.
Together, they constitute two ways of putting the requirements of democracy into
practice in the criminal system and ensuring that this system is exercised effectively.
15.
The Court’s judgment makes it clear that the self-amnesty laws referred to in
this case are incompatible with the American Convention, which Peru signed and
ratified, and which is therefore a source of the State’s international obligations,
entered into in the exercise of its sovereignty. In my opinion, this incompatibility
signifies that those laws are null and void, because they are at odds with the State’s
international commitments.
Therefore, they cannot produce the legal effects
inherent in laws promulgated normally and which are compatible with the
international and constitutional provisions that engage the State of Peru. The