89
adopt indeterminate actions, when it has already done everything possible in order
that the amnesty laws have no legal effect whatsoever and such course of action has
been approved by the Inter-American Court. The State acknowledges the
Commission's concern "that the rights enshrined in the Convention take precedence
over the statutory law apparently in force in Perú,” but it argues that the selfamnesty laws “are not law, and thus no further measures need be taken in addition
to those so far adopted,” and
f)
The State, like the representatives of the alleged victims, considers that the
measures adopted and examined by the Inter-American Court of Human Rights are
adequate and there is no reason to grant the Commission's motion.
Considerations by the Court
165. In view of the nature of this case and the specific dispute between the parties with
relation to the State's obligations pursuant to Article 2 of the Convention, the Court deems
it fit to analyze said Article separately in the following section.
166.
Article 2 of the Convention provides that:
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured
by legislative or other provisions, the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such legislative or other measures
as may be necessary to give effect to those rights or freedoms.
167. Firstly, regard should be had to the fact that the Court has already examined the
content and scope of amnesty laws No. 26,479 and No. 26,492 in the case of Barrios Altos
v. Perú. In the judgment on the merits of March 14, 2001, it held that the laws "run counter
to the American Convention [...] and, consequently, have no legal effects.”135 The Court
interpreted the Judgment on the Merits passed in that case to mean that “the enactment of
a law that overtly conflicts with the obligations undertaken by a State Party to the
Convention constitutes per se a violation of the Convention and gives rise to the State's
international liability [and], given the nature of the violation represented by amnesty laws
No. 26,479 and No. 26,492, the mandates of the judgment on the merits in the case of
Barrios Altos have general effects.”136
168. By the same token, the Court has recently reiterated that the adopting and applying
laws specifically granting amnesty for crimes against humanity is contrary to the
Convention. In the case of Almonacid Arellano et al. v. Chile, the Court held that
[…] States cannot neglect their duty to investigate, identify and punish those persons responsible
for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions.
Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.137
169. The Court notes that the parties expressly agree with the fact that the amnesty laws
run counter to the American Convention, since the Court has already declared, with general
135
Cf. Case of Barrios Altos, supra note 125, para. 41 to 44 and fourth operative paragraph.
136
Cf. Case of Barrios Altos. Interpretation of the Judgment on the Merits. (Article 67 American Convention
on Human Rights). Judgment of September 3, 2001. Series C No. 83, para. 18 and second operative paragraph.
137
Cf. Case of Almonacid-Arellano et al., supra note 6, para. 114.
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