91
173. Furthermore, as regards the scope of the State’s international liability in that regard,
the Court has recently stated that:
[…] The observance by State agents or officials of a law which violates the Convention gives rise
to the international liability of such State, as contemplated in International Human Rights Law, in
the sense that every State is internationally responsible for the acts or omissions of any of its
powers or bodies for the violation of internationally protected rights, pursuant to Article 1(1) of
the American Convention.
[…] The Court is aware that domestic judges and courts are bound to respect the rule of law, and
therefore, they are bound to apply the provisions in force within the legal system. But when a
State has ratified an international treaty such as the American Convention, its judges, as part of
the State, are also bound by such Convention. This forces them to see that all the effects of the
provisions embodied in the Convention are not adversely affected by the enforcement of laws
which are contrary to its purpose and that do not have any legal effects since their inception. In
other words, the Judiciary must exercise a sort of "consistency control" between the domestic
legal provisions which are applied to specific cases and the American Convention on Human
Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also
the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of
the American Convention.146
174. In line with this view, the remaining dispute must be understood as part of the first
set of measures that must be adopted to adjust the domestic law to the Convention. In
order to better understand the issue, it must be noted that the Court has found that, in
Perú, the self-amnesty laws are ab initio incompatible with the Convention; that is, their
mere enactment “constitutes per se a violation to the Convention” since it “overtly conflicts
with the duties undertaken by any State Party” to such treaty. Such is the rationale behind
the Court’s pronouncement with general effects in the case of Barrios Altos. That is why its
application by a state organ in a specific case, through subsequent statutory instruments or
through its enforcement by state officers, constitutes a violation to the Convention.
175. That being said, now the State's actions and practices must be analyzed together in
order to assess compliance with the general duty imposed by Article 2 on the State.
Therefore, it is appropriate to establish whether the amnesty laws have continued “to
obstruct the investigation of the grounds on which this case is based or the identification
and punishment of those responsible” or whether they have or may still have “the same or a
similar impact with regard to other cases that have occurred in Perú.”147
176. The Court finds that, during the proceeding of the instant case in the Inter-American
system, the Commission initially recommended in the Report on the merits No. 95/05 that
the State should “repeal" the laws. Later, in filing its application, since it considered that the
State had failed to guarantee the “nullity and ineffectiveness” of the laws, it requested the
Court to direct the State to adopt measures aimed at ensuring that they are “rendered
ineffective.” Finally, in its oral and written arguments, the Commission requested that said
laws be “repealed” or “ruled out of the legal system” through “an official instrument of equal
or higher hierarchy.” Even though such qualifications might have hampered the State’s
potential definition of the precise content of the domestic law measure to adopt, the Court
notes that the Commission has not determined events or situations that evidence the
145
Cf. Case of Almonacid-Arrellano et al., supra note 6, para. 118, and Case of Raxcacó-Reyes, supra note
128, para. 87.
146
Cf. Case of Almonacid-Arrellano et al., supra note 6, paras. 123 to 125.
147
Cf. Case of Barrios-Altos, supra note 125, para. 44.
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