4
And both in my aforementioned Concurring Opinion in the case "The Last Temptation of
Christ" (Merits, 2001, pars. 96-98), and in my previous Dissenting Opinion in the case
Caballero Delgado and Santana (Reparationos, 1997, pars. 13-14 and 20) 12, I insisted
that the modifications in the domestic legal order required, so as to harmonize it with
the norms of protection of the American Convention, constitute a form of nonpecuniary reparation under the Convention.
10.
There is another point which seems to me even graver in relation to the
degenerated figure - an offence against the rule of law (État de Droit) itself - of the socalled laws of self-amnesty. As the facts of the present case of Barrios Altos disclose in leading the Court to declare, in the terms of the recognition of international
responsibility made by the respondent State, the violations of the rights to life 13 and to
personal integrity 14, - such laws do affect non-derogable rights - the minimum
universally recognized, - which fall in the ambit of jus cogens.
11.
This being so, the laws of self-amnesty, besides being manifestly incompatible
with the American Convention, and devoid, in consequence, of legal effects, have no
legal validity at all in the light of the norms of the International Law of Human Rights.
They are rather the source (fons et origo) of an international illicit act: as from their
own adoption (tempus commisi delicti), and irrespectively of their subsequent
application, they engage the international responsibility of the State. Their being in
force creates per se a situation which affects in a continuing way non-derogable rights,
which, as I have already indicated, belong to the domain of jus cogens. Once
established, by the adoption of such laws, the international responsibility of the State,
this is under the duty to put an end to such situation in violation of the fundamental
rights of the human person (with the prompt derogation of those laws), as well as,
given the circumstances of each case, to provide reparation for the consequences of
the wrongful situation created.
12.
Last by not least, - in this quite brief couple of hours that I had in order to write
my present Concurring Opinion and to inform the Court of it, - may I add one further
thought. At this beginning of the XXIst century, I see no sense at all in trying
antagonistically to oppose the international responsibility of the State to the individual
penal responsibility. The developments, in relation to one and the other, nowadays
take place, in my view, pari passu. The States (and any other form of politico-social
organization) are composed of individuals, citizens and rulers, these latter taking
decisions on behalf of the respective State.
13.
The international responsibility of the State for violations of internationally
recognized human rights, - including violations which have taken place by means of
the adoption and application of laws of self-amnesty, - and the individual penal
responsibility of agents perpetrators of grave violations of human rights and of
International Humanitarian Law, are two faces of the same coin, in the fight against
atrocities, impunity, and injustice. It was necessary to wait many years to come to this
conclusion, which, if it is possible today, is also due, - may I insist on a point which is
12
IACtHR, Judgment of 29.01.1997, Series C, n. 31.
13
Article 4 of the American Convention.
14
Article 5 of the American Convention.
.
.
.