15
regarding the broad scope of the general duty of guarantee (Article 1(1) of the Convention)
and the erga omnes obligations of protection of the Convention (paras. 2-13). The Court, in
its Judgment in this case of La Cantuta, when pointing out that the facts of the cas d'espèce
have infringed imperative laws of International Law (jus cogens), has positively esteemed
the efforts of the respondent Government to attend “its duty -derived from its obligation to
investigate - to request and impel, through appropriate judicial and diplomatic measures,
the extradition of one of the main defendants” (paras. 159-160). An approximation or
convergence between International Human Rights Law and International Criminal Law can
be developed therefrom.
51.
When underlining the broad scope of Article 1(1) of the American Convention, the
Court has immediately after affirmed the obligation of the States Parties to investigate
human rights violations and to prosecute and punish the responsible participants (para.
160). The fulfillment of such an obligation gains importance before the seriousness of the
facts of this case of La Cantuta, eloquently emphasized at the very beginning of an account
in the case:
"As opposed to what is expected, impunity does not conceal the crime, it increases it.
The chain of crimes by the concealers is added to the crime committed by the perpetrators –
material and intellectual. Kidnapping, cold-blooded murdering, concealed burial and body
incineration are completed by lying, denial and delay in justice administration. Except for
honorable cases, prosecutors and judges, non executive members, members of congress, military
and civil governors have become part of the large file of the accessory impunity with which it is
expected to return the case of the nine students and the professor of the Universidad de la
Cantuta to the mass grave, cold-blooded murdered at the dawn of July 18, 1992.”30
52.
It was a State crime which involved, with animus agressionis, a chain of command,
composed by several agents of the public power (of the different State powers), from the
President of the Republic to the perpetrators of the extra-legal executions and other human
rights violations. When analyzing the legal consequences of the said violations, this Court
has pointed out, in this Judgment of the case La Cantuta, that
"Before the nature and seriousness of the facts, and within a context of systematic
violation of human rights, the need to eradicate impunity appears before the international
community as a duty of interstate cooperation for such effects. Access to justice constitutes an
imperative rule of International Law and, as such, it generates erga omnes obligations for the
States to adopt the necessary provisions so as not to leave those violations without punishment,
whether exercising its jurisdiction to apply its domestic law and International Law to prosecute
and, eventually, penalize those responsible for such facts, or cooperating with other States that
do so or attempt to do so. The Court remembers that, under the mechanism of collective
guarantee set forth in the American Convention, jointly with regional and universal international
obligations on the matter, the States Parties of the Convention must cooperate with each other in
that sense” (para. 160).31
53.
Consequently, the broadening of the material content of the jus cogens is
consolidated in this Judgment, as it encompasses the right of access to justice lato sensu,
without which there is simply no Constitutional State. I honestly hope that the Court
maintains this position in the future, and does not admit any attempt to stop its
guaranteeing and emancipating jurisprudence of the human being regarding the matter, as
this scope of protection of the human being does not imply nor admits steps back. I
sincerely hope that the Court always keeps progressing in its jurisprudential construction
regarding the imperative rules of International Law.
30
APRODEH, De la Tierra Brotó la Verdad..., op. cit. supra No. (7), p. 5.
31
And also cf. paras. 239-241, regarding the intangibility of imperative rules of International Law (jus
cogens) and the role of education in human rights.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos