8
28.
It is good to emphasize that although this Court has jurisdiction to
safeguard and interpret the American Convention on Human Rights, in some
cases it is led to take cognizance of crimes. The Court will lack, for obvious
reasons, of criminal jurisdiction to try individuals for crimes, but it does have the
authority to review the facts and to apply the consequences within its sphere of
action, condemning the State that allowed or acted for the commission of crimes.
And upon hearing the case, the Court is obliged to apply the law to the particular
circumstances under penalty of unjustifiable omission. And in classifying a crime
as one against humanity or as a serious crime “against human rights, the Court
does so incidently (obeter dictim) and not bound by criminal law, domestic, or
international.
29.
The examination of the concept of the field of international criminal law
should not disturb the Court or the national courts, given that the clear
convergence of several divisions of international law, which is being dispursed by
the doctrine and jurisprudence is not of today. It is so because the boundaries
between the sub-branches such as Human Rights, Humanitarian Law, and
International Criminal Law are long. Its standards and sources are necessarily
complementary, but there would be a serious divergence between the
interpretations of those legal niches and those would never be uniformized, with
the regrettable legal uncertainty for humanity.
VII.
CONCLUSION
30.
Finally, it is wise to remember that the international jurisprudence,
customs, and doctrine establish that no law or rule of law, such as provisions of
an amnesty, the statute of limitations, and other exclusionary punishments,
should prevent a State from meeting its inalienable obligation to punish crimes
against-humanity, because they are insurmountable in the existence of an
assaulted individual, in the memories of the components of their social circle, and
in the transmissions for generations of all humanity.
31.
It is necessary to surpass the intensified positivism, because only then will
there enter a new era of respect for the rights of the individual, helping to end the
cycle of impunity in Brazil. It is necessary to show that justice works equally in
the punishment of anyone who practices serious crimes against humanity, so that
the imperative of law and justice always allows that such cruel and inhumane
practices never be repeated, never forgotten, and that they always be punished.
Roberto de Figueiredo Caldas
Judge Ad hoc
Pablo Saavedra Alessandri
Secretario
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