2
(...) In the light of the general obligations set forth in Articles 1(1) and 2 of the
American Convention, the States Parties have the duty to take measures of all kinds to
ensure that no one is deprived of the judicial protection and the exercise of the right to a
simple and effective remedy, in the terms of Articles 8 and 25 of the
Convention. It is
for this reason that the States Parties to the Convention which adopt laws that have such
an effect, as do the laws of self-amnesty, incur in a violation of Articles 8 and 25 in
connection with Articles 1(1) and 2, all of the Convention. The laws of self-amnesty lead to
the defencelessness of the victims and to the perpetuation of the impunity, whereby they
are manifestly incompatible with the letter and the spirit of the American Convention. This
type of laws obstructs the identification of the individuals responsible for violations of
human rights, as obstacles as created to the investigation and the access to justice,
impeding the victims and their relatives to know the truth and to receive the
corresponding reparation" 5.
4.
These considerations of the Inter-American Court constitute a new and great
qualitative step forward in its case-law, to the effect of seeking to overcome an
obstacle which the international organs of supervision of human rights have not yet
succeeded to surpass: the impunity, with the resulting erosion of the confidence of the
population in public institutions 6. Moreover, they meet an expectation which in our
days is truly universal. It may be recalled, in this respect, that the main document
adopted by the II World Conference of Human Rights (1993) urged the States to
"abrogate legislation leading to impunity for those responsible for grave violations of
human rights, (...) and prosecute such violations (...)" 7.
5.
The so-called self-amnesties are, in sum, an inadmissible offence against the
right to truth and the right to justice (starting with the very access to justice) 8. They
are manifestly incompatible with the general - indissociable - obligations of the States
Parties to the American Convention to respect and to ensure respect for the human
rights protected by it, securing their free and full exercise (in the terms of Article 1(1)
of the Convention), as well as to harmonize their domestic law with the international
norms of protection (in the terms of Article 2 of the Convention). Moreover, they affect
the rights protected by the Convention, in particular the rights to judicial guarantees
(Article 8) and to judicial protection (Article 25).
6.
It is to be kept in mind, in relation to the laws of self-amnesty, that their
legality at domestic law level, in leading to impunity and injustice, is in flagrant
incompatibility with the norms of protection of the International Law of Human Rights,
bringing about violations de jure of the rights of the human person. The corpus juris of
the International Law of Human Rights makes it clear that not everything that is lawful
in the domestic legal order is so in the international legal order, and even more
5
.
And the Court adds, in the paragraph 44 of the present Judgment: - "As a consequence of the
manifest incompatibility between the laws of self-amnesty and the American Convention on Human Rights,
the aforementioned laws are devoid of legal effects and cannot keep on representing an obstacle to the
investigation of the facts (...) nor to the identification and punishment of those responsible (...)".
6
.
Cf. the criticisms of the "ignored amnesties" in the past, in R.E. Norris, "Leyes de Impunidad y los
Derechos Humanos en las Américas: Una Respuesta Legal", 15 Revista del Instituto Interamericano de
Derechos Humanos (1992) pp. 62-65.
7
.
United Nations, Declaration and Programme of Action of Vienna (1993), part II, par. 60.
8
.
Cf. the Joint Separate Opinion of Judges A.A. Cançado Trindade and A. Abreu Burelli, in the case
Loayza Tamayo (Reparations, Judgment of 27.11.1998), Series C, n. 42, pars. 2-4; and cf. L. Joinet
(rapporteur), La Cuestión de la Impunidad de los Autores de Violaciones de los Derechos Humanos
(Derechos Civiles y Políticos) - Informe Final, U.N./Commission on Human Rights, doc.
E/CN.4/Sub.2/1997/20, of 26.06.1997, pp. 1-34.