7
fulfillment of said obligations, or by the non adoption of the necessary legislation to fulfill
the latter.
(...) The tempus commisi delicti would extend in such a way to encompass the
whole period during which the national laws remained in conflict with the conventional
obligations of protection, thus entailing the additional obligation to remedy the
subsequent detriments resulting from such “continued situation” during the whole period
under analysis” (paras. 22-23).
25.
I reaffirmed the same position in my Concurring Opinion in the above
mentioned case of “The Last Temptation of Christ”(paras. 2-40), where I pondered
that, considering that the tempus commisi delicti is the same as that of the approval
and enactment of a law incompatible with a human rights treaty, since then
compromising the international liability of the State, the modifications in the
domestic legal system of a State Party, necessary to its harmony with the rules and
regulations of such a treaty, may constitute, within the context of a specific case, a
way of non-monetary compensation under such treaty. The Judgment of the Court in
this case was adopted on February 5, 2001.
26.
A few days later, in an extraordinary period of sessions of this Court held in
its central office in Costa Rica, a new chapter on this matter was opened. Due to a
blackout in the main building in which the former deliberations room is located, the
Court moved to its Library11 building, where there was power (provided by a
generator of their own); where it elaborated and adopted its historical Judgment in
the case of Barrios Altos (merits), on March 14, 2001. I felt moved at that time,
because it was the first time, in contemporary International Law, that an
international court (as the Inter-American Court) set forth that amnesty laws (as
Peruvian laws No. 26,479 and 26,492) are incompatible with a human rights treaty
(as the American Convention) and have no legal effects (operative paragraph No. 4).
27.
That is, they are flawed with nullity, ex tunc nullity and ab initio nullity,
therefore lacking any and all legal effect. The abovementioned Barrios Altos
Judgment is, at present, recognized in the specialized legal bibliography in different
continents and in the jusinternationalist circles in the whole world, as a landmark in
the history of International Human Rights Law. In that Judgment, the Court stated
that
- "(...) Amnesty and prescription provisions, and the setting of liability
exemptions with the purpose of preventing the investigation and punishment of those
responsible for serious violations of human rights such as torture, summary executions,
extra-legal or arbitrary executions and forced disappearances are inadmissible, and all of
them are prohibited as they contravene rights than cannot be abolished which are
recognized by International Human Rights Law.
(...) In the light of the general obligations consecrated in Articles 1(1) and 2 of
the American Convention, the States Parties have the duty to take all the measures
necessary so that nobody is deprived from legal protection and the exercise of the right
to an effective and simple remedy, in the terms of Articles 8 and 25 of the Convention.
That is why the State Parties of the Convention which adopt laws having this effect, such
as the self-amnesty law, commit a violation of Articles 8 and 25, consistently with
Articles 1(1) and 2, all included in the Convention. Self-amnesty laws lead to victims
defenselessness and to the perpetuation of impunity, so that is why they are patently
incompatible with the content and the spirit of the American Convention. This type of
law prevents the identification of individuals responsible for violations of human rights,
as the investigation and access to justice are hindered, and the victims and their next of
11
At present, Joint Library with the Instituto Interamericano de Derechos Humanos (IIDH), that I
was pleased to open.
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