forgotten that, parallel to the establishment of the first treaties in the field of
international human rights law, international demands have also emerged to fight
against the impunity of those who violate human rights, which will be addressed
below.
ii.
The imperative to fight against impunity and the appearance of an
apparent tension in the international protection of Human Rights
33. The international sense of indignation at the massive violations of human rights and
humanitarian law at the end of the Second World War and the desire that they not
be repeated directed the States’ attention to the need to combat impunity and
promote investigation and punishment of those responsible. From that moment on,
the process described by Kathryn Sikkink as the “cascade of justice” began, 78, ““a
dramatic and interrelated new trend in global politics of holding individual public
officials, including heads of state, criminally responsible for human rights
violations.” 79
34. From the institutional point of view, the first years of UN activity were marked by the
General Assembly’s adoption of resolutions that emphasized the imperative of
fighting impunity, 80 supported by the debates that preceded the creation of the
Nuremberg Tribunal 81 and consolidated in the aforementioned Declaration and in the
Program of Action of the Vienna World Conference (1993). In accordance with the
descriptions by Professor and former Judge Antônio Augusto Cançado Trindade in a
concurring opinion in the case of Barrios Altos v. Peru in 2001, these efforts
demonstrated that the fight against impunity is “a truly universal cry (...).” 82
35. As has already been made clear in the Court’s case law discussed in the previous
section (supra, para. 19-29), the fight against impunity for those who violate human
rights is not an end in itself, but also aims to prevent future violations. This reasoning
is verified in sources beyond the IHR System, with the UN International Law
Commission, for example, having long stated that "prevention and punishment are
simply two aspects of the obligation to provide protection and both have a common
objective, namely, to prevent potential perpetrators of protected persons from
carrying out such attacks." 83 The International Court of Justice ("ICJ"), for its part,
has already pointed out, when dealing with the application of the Convention on
Genocide (which provides for its criminal classification), that "provisions regulating
punishment also have a deterrent and therefore a preventive effect" and that "one
78
Cf. SIKKINK, Kathryn. The Justice Cascade: how human rights prosecutions are changing world politics.
Nova York; Londres: W. W. Norton & Company, 2011, p. 9. The term had already been used by the author in
LUTZ, Ellen; SIKKINK, Kathryn. The justice cascade: the evolution and impact of foreign human rights trials
in Latin America. Chicago Journal of International Law, v. 2 (2001). According to Sikkink, the term
"cascade" was borrowed from author Cass Sunstein, who used the term "social norm cascades" in his work
to define a rapid and drastic change in the legitimacy of norms and actions on behalf of those rules. Cf.
SUSTEIN, Cass. Free Markets and Social Justice. New York: Oxford University Press, 1997.
79
Cf. SIKKINK, Kathryn. The Justice Cascade: how human rights prosecutions are changing world politics.
Nova York; Londres: W. W. Norton & Company, 2011, p. 9 (our translation).
80
Cf. for example, AGNU. Resolution A/Res/3(I) (Extradition and Punishment of War Criminals) adopted on
February 13, 1946; UNAG. Resolution A/RES/95(I) (Affirmation of the Principles of International Law
Recognized by the Charter of the Nurnberg Tribunal) adopted on December 11, 1946.
81
Cf. RAMOS, André de Carvalho. ‘Criminalization mandates in the International Human Rights Law: new
paradigms for the protection of victims of violations of human rights.’ Revista Brasileira de Ciências
Criminais, vol. 62 (2006), p. 4.
82
Cf. Case of Barrios Altos v. Peru. Merits. Judgment of March 14, 2001. Series C No. 75. Reasoned opinion
of Judge Cançado Trindade, para. 4.
83
Cf. International Law Commission. Fourth report on State responsibility, by Mr. Roberto Ago, Special
Rapporteur. A. Doc. A/CN.4/264 e Add. 1 (1972-1973), p. 98 (our translation).
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