58
158. On its behalf, the Committee against Torture also expressed that the
amnesties that prevent the investigation of acts of torture, as well as the
judgment and eventual punishment of those responsible, are in violation of the
Convention against Torture and other Cruel, Inhumane, and Degrading
Treatment.216
159. Similarly, in the universal system, although in other branches of
international law, as in international criminal law, amnesties or analogous norms
have also been deemed inadmissible. The International Criminal Tribunal for the
former Yugoslavia, in a case related to torture, considered that it would not make
sense to sustain on the one hand the proscription of the serious human rights
violations, and on the other hand to authorize state measures that authorize or
condone, or amnesty laws that absolve its perpetrators.217 In the same sense, the
Special Court for Sierra Leone considered that the amnesty laws of said country
were not applicable to serious international crimes.218 This universal tendency has
been consolidated via the incorporation of the mentioned standard, in the
elaboration of the statutes of special tribunals most recently created in the forum
of the United Nations. As such, both the United Nations Agreement with the
Republic of Lebanon and with the Kingdom of Cambodia, as well as the Statutes
that create the Special Tribunal for Lebanon, the Special Court for Sierra Leone,
and the Extraordinary Chambers of the Courts of Cambodia, have included in
their texts clauses that indicate that the amnesties that are conceded do not
constitute an impediment to the processing of those responsible for crimes that
are within the scope of the jurisdiction of said tribunals.219
160.
The illegality of the amnesties related to serious violations of human
rights vis-à-vis international law have been affirmed by the courts and organs of
all the regional systems for the protection of human rights.
161. In the European System, the European Court of Human Rights considered
that it is of the highest importance, in what pertains to an effective remedy, that
the criminal procedures which refer to crimes, such as torture, that imply serious
216
Cf. C.A.T., General Comment 2: Implemenation of Article 2 by States Parties. U.N. Doc.
CAT/C/GC/2, of January 24, 2008, para. 5, and C.A.T., Final observations regarding the test of the
reports presented by the State parties regarding Article 19 of the Convention, in relation to: Benin,
U.N. Doc. CAT/C/BEN/CO/2, of February 19, 2008, para. 9, and Ex Republic of Yugoslava of
Macedonia, U.N. Doc. CAT/C/MKD/CO/2, of May 21, 2008, para. 5.
217
Cf. I.C.T.Y., Case of Prosecutor v. Furundžija. Judgment of 10 December, 1998. Case No. IT95-17/1-T, para. 155.
218
Cf. S.C.S.L., Case of Prosecutor v. Gbao, Decision No. SCSL-04-15-PT-141, Appeals
Chamber, Decision on Preliminary Motion on the Invalidity of the Agreement Between the United
Nations and the Government of Sierra Leone on the Establishment of the Special Court, 25 May 2004,
para. 10; S.C.S.L., Case of Prosecutor v. Sesay, Callon and Gbao, Case No. SCSL-04-15-T, Judgment
of the Trial Chamber, 2 March 2009, para. 54, and S.C.S.L, Case of Prosecutor v. Sesay, Callon and
Gbao, Case No. SCSL-04-15-T, Trial Chamber, Sentencing Judgment, 8 April 2009, para. 253.
219
Cf. Agreement between the United Nations and the Republic of Lebanon related to the
establishment of a Special Tribunal for Lebanon, Article 16 and Statute of the Special Tribunal for
Lebanon, Article 6; Order 1757 of the Security Council of the United Nations. U.N. Doc. S/RES/1757,
of May 30, 2007; Statue for the Special Tribunal of Sierra Leona, of January 16, 2002, Article 10;
Agreement between the United Nations and the Royal Government of Cambodia for the Prosecution
under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, of March 6,
2003, Article 11, and Law on the establishment of the Extroardinary Chambers in the Courts of
Cambodia for the Prosecution under Cambodian Law of Crimes Committed during the Period of
Democratic Kampuchea, with amendments approved on October 27, 2004 (NS/RKM,1004/006), new
Article 40.
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