7
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
kin are prevented from knowing the truth and receive the corresponding remedy” (paras. 41 and
43).
28.
In my Concurring Opinion in that Judgment on the merits of Barrios Altos, I
pondered that
"To sum up, the so called self-amnesties are an inadmissible affront to the right to truth
and the right to justice (beginning by the access to justice itself). They are openly incompatible
with the general obligations –those that cannot be dissociated- of the States Parties of the
American Convention to protect and guarantee the human rights the latter protects, assuring
their free and full exercise (in the terms of Article 1(1) of the Convention), and also the
adaptation of their domestic law to the international rules and regulations of protection (in the
terms of Article 2 of the Convention). Furthermore, they affect those rights protected by the
Convention, particularly the rights to a fair trial (Article 8) and the legal protection (Article 25).
With respect to self-amnesty laws, we have to bear in mind that their legality within the
scope of domestic law, as they lead to impunity and injustice, are in flagrant incompatibility with
the protection rules and regulations of International Human Rights Law, thus entailing de jure
violations of human rights. The corpus juris of International Human Rights Law emphasizes that
not everything that is legal within the domestic legal system is so in the international legal
system, especially when higher values are at stake (such as truth and justice). Actually, the so
called amnesty laws, particularly the perverse modality of the so called self-amnesty laws,
although considered laws under a certain domestic legal system, are not so in the scope of
International Human Rights Law. (...)
11
At present, Joint Library with the Instituto Interamericano de Derechos Humanos (IIDH), that I was
pleased to open.
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