8
We do not have to ever forget that the State was originally conceived aiming at common
welfare. The State exists for the human being, and not vice versa. No State can be considered
above the Law, which regulations´ final addressees are human beings. (...) We have to firmly say
and repeat it, as many times as necessary: in the scope of International Human Rights Law, the
so called “laws” of self-amnesty are not actually laws: they are a mere aberration, an
inadmissible affront to the legal conscience of humanity” (paras. 5-6 and 26).
29.
Subsequent to the Judgment on the merits, the above mentioned Construction of
Judgment in the same case of Barrios Altos, explained that the ruling by the Court regarding
the merits, given that the nature of the violation by amnesty laws No. 26,479 and 26,492,
"has general effects” (operative paragraph No. 2). Consequently, said laws of self-amnesty
are inapplicable (in any given situation, whether before, during or after their alleged
“adoption”), they are simply not “laws.” The Court explanation has had, since then, a
sensitive impact in the domestic legal system, not only of the Peruvian State, but also of
other South-American States. Regarding to the responding Government in the cas d'espèce,
as it is made clear by the Court in this Judgment of the case La Cantuta,
“the Judgment issued in the case of Barrios Altos is fully incorporated into the domestic
legal system. (...) If that Judgment was conclusive that it had general effects, such declaration
makes it ipso jure part of Peru's domestic law, which is shown in the fact that such Judgment has
been applied and interpreted by state bodies.
The ab initio incompatibility of the amnesty laws with the Convention has generally
materialized in Peru ever since it was pronounced by the Court in the judgment in the case of
Barrios Altos; that is, the State has suppressed any effects that such laws could have had.”
(paras. 186-187)
30.
Recently, the Inter-American Court took a new step in the evolution of the subject
matter, in the same line of the Barrios Altos Judgment, in its Judgment on the case
Almonacid Arellano y Otros vs. Chile (dated September 26, 2006). The Court declared that
“when expecting to grant an amnesty to those responsible for crimes against humanity,
decree law No. 2191 is incompatible with the American Convention and, therefore, lacks
legal effects under said treaty” (operative paragraph No. 3). And the Court set forth that the
respondent Government must guarantee that the above mentioned amnesty decree-law of
the Pinochet regime, does not continue representing an obstacle for the investigation,
prosecution and punishment of those who were responsible for violations of human rights in
the cas d'espèce (operative paragraphs No. 5-6).
31.
In my long Separate Opinion of the case Almonacid Arellano y Otros, I focused my
arguments in three basic points, to wit: a) the lack of legal validity of self-amnesties; b)
self-amnesties and the obstruction and denial of justice: the broadening of the material
content of jus cogens prohibitions; and c) the conceptualization of crimes against humanity
in the confluence between International Human Rights Law and International Criminal Law
(paras. 1-28). I do not intend to repeat here what I developed in that recent Opinion, but
only to refer to them and extract the following warning that I formulated in my Separate
Opinion in the case of Almonacid:
"(...) Self-amnesties are not true laws, as they lack the generic characteristic of the
latter, the idea of Law which inspires them (essential even for legal certainty), and their search
for common welfare. They do not even look for the organization or regulation of the social
relation for achieving common welfare. They just expect to subtract certain facts from justice,
conceal serious violations of rights, and guarantee the impunity of some people. They do not
satisfy the minimum requirements of laws; very much on the contrary, they are legal
aberrations. (...)
(...) Self-amnesties are, in my opinion, the denial itself of the Law. They openly infringe
general law principles, as the access to justice (which in my opinion belongs to the scope of jus
cogens), equality before the law, the right to a natural judge, among others. In some cases, they
have even concealed crimes against humanity and genocide acts. Considering that they prevent
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