9
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 the concretization of justice for crimes of such
seriousness, self-amnesties infringe. As far as they hinder justice from its execution for
crimes of such seriousness, self-amnesties infringe jus cogens. (...)
Finally, self-amnesties violate the rights to truth and justice, they cruelly
disregard the terrible suffering of the victims, hinder the right to proper reparations.
Their perverse effects, in my opinion permeate the whole social tissue, with the resulting
loss in the faith for human justice and real values, and a perverse distortion of the State
purposes. Originally created for the realization of common welfare, the State boils down
to an entity which exterminates members from segments of its own population (the
most precious element of the State itself, its human substratum) before the most
absolute impunity. From an entity created for the concretization of common welfare, it
turns into an entity responsible for truly criminal practices, for undeniable State crimes"
(paras. 7, 10 and 21).
32.
Judgments of this Court in the cases of Barrios Altos (2001), Almonacid
(2006), and La Cantuta (2006), constitute a decisive contribution of this Court
towards the end of self-amnesties and the prevalence of the Law. I perfectly
remember that, in the public hearing of September 29, 2006 in this case of La
Cantuta, held in the Court´s house in San José de Costa Rica (my last public hearing
as Incumbent Judge of this Court), the common concern, expressed by both the
Inter-American Commission and by the counsel of the victims and their next of kin,
as I understood it, was in the sense to guarantee the due remedies, among which
the guarantee of non-repetition of injurious facts, -although their arguments
regarding self-amnesty laws have not been converging or coincident.
33.
The victims and their next of kin counsel (interventions of Ms. Viviana
Krsticevic and Ms. María Clara Galvis, of CEJIL) firmly held that what was set forth by
the Court in the Judgment of Barrios Altos was already directly incorporated in the
domestic Peruvian legal system, and was convalidated by the constant practice of
the Peruvian Judicial Power since then (excluding the military jurisdiction, the
decisions of which lack “jurisdictional” characteristics). Also, the Inter-American
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