Inter-American Court of Human Rights

SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE

1. 
   I have voted for the adoption, by the Inter-American Court of Human Rights, of this Judgment in the case of La Cantuta v. Perú. Considering the relevance of the issues therein addressed by the Court, I am obliged to add this Separate Opinion to the Judgment, with my personal opinions as grounds of my position regarding the matters discussed by the Court. I shall focus my considerations in four basic points, to wit: a) the recurrence of the State crime: the massacre of La Cantuta in the context of a State criminal practice (as detached from the application filed before the Inter-American Court, the determination of the facts by the Inter-American Court, and the acknowledgement of aggravated liability by the respondent government itself); b) the contribution of the Inter-American Court to the prevalence of the Law towards the end of self-amnesties; c) the inadmissible aggression to the Universitas; and d) the inadmissibility of violations against jus cogens.
   

I. The Recurrence of the State Crime: The Massacre of La Cantuta in the Context of a State Criminal Practice.
1. The Application before the Inter-American Court
2. In the application of February 14, 2006 filed by the Inter-American Commission of Human Rights before this Court in the case at issue, the Commission refers, inter alia, to a public complaint (dated May 5, 1993) by a General of the Peruvian Army (Mr. Rodolfo Robles Espinoza) in the sense that the National Intelligence Service (SIN) of Peru had organized a “death squad” called Grupo Colina, “responsible for the physical elimination of terrorists,” which perpetrated the massacre of November 1991 of 14 people in the case of Barrios Altos (known to this Court), as well as the extra-legal executions of a professor and 9 students of the University of La Cantuta (which took place in July, 1992) (para. 84), also a case which this Court has ruled upon. In fact, the cases are part of a systematic practice planned and executed by State agents, according to the orders given by the highest rank of the State public power.
3. The enumeration of facts included in the above mentioned application filed by the Commission is based, also, in the broad determination of facts by the Comisión de la Verdad y Reconciliación -CVR- (Truth and Reconciliation Commission of Peru), included in its Final Report of 2003. In this case of La Cantuta, the members of the Peruvian army and the agents of the Grupo Colina broke in the university campus, burst into the homes of professors and students, kidnapped the victims (in the dawn of July 18, 1992), took them with “unknown destination” and executed them. The kidnapped victims of La Cantuta remained missing until July 12, 1993, when mortal remains were located, apparently theirs, in clandestine graves located in the Chavilca gorge, in the city of Cienguilla (paras. 54-58).
4. However, to date, the mortal remains of only two of the executed victims have been identified. Examinations by experts concluded that the victims - the professor and the nine university students kidnapped at La Cantuta - had been executed with “shots of firearms in the head” and that their mortal remains had been “burnt in state of putrefaction” (pars 68 and 61). In the dawn of the day, the crime was committed (on July 18, 1992) the State machinery of concealment was set to work.

5. The above mentioned application filed by the Inter-American Commission before this Court mentions that the CVR identified a “whole organized power structure” by means of which it carries out, within the context of an “anti-subversive strategy by the State agents,” a “systematic practice” of “arbitrary executions,” which reached the highest levels of victimized people in the periods 1983-1984 and 1989-1992 (paras. 73, 70 and 76); also, “the practice of forced disappearance was a mechanism of anti-subversive fight systematically used by the State agents between 1988 and 1993,” estimating that the “members of the Armed Forces” where those “charged with the greatest proportion (more than 60%) of the victims of forced disappearance caused by State agents in the period 1980-2000" (para. 77).

6. Then, the Inter-American Commission transcribed, out of the Final Report of the CVR, the “stages” in which this macabre practice was conducted:
"victim selection and detention, deposit in a detention center, eventual transfer to another detention center, interrogation, torture, processing of the information obtained, decision of elimination, physical elimination, disappearance of victim´s remains, use of State resources” (para. 78).
7. The Final Report of the CVR, extensively quoted in the application filed by the Inter-American Commission before this Court, refers to a criminal practice by the State, encompassing a “clandestine circuit” of arbitrary detentions followed by extra-legal executions (para. 150). The Grupo Colina was a group of extermination inserted within the SIN structure (leaded by Vladimiro Montesinos) to face alleged “enemies” of the regime of the then President Alberto Fujimori (paras. 96 and 85). The Grupo Colina operated with State resources (para. 80), and
"fullfilled a State policy which consisted in the identification, control and elimination of those people suspected to belong to insurgent groups, by systematic actions of indiscriminate extra-legal executions, selective murders, forced disappearances and tortures” (para. 89).

2. The Determination of Facts by the Inter-American Court.
8. In this Judgment of the case La Cantuta, in chapter VII, regarding the proven facts, the Inter-American Court, taking into account the Final Report of the CVR, set forth that
"Arbitrary executions were a systematic practice carried out in the backdrop of the contra-subversive strategy of State agents, especially during the hardest times of the conflict (1983-1984 and 1989-1992)" (para. 80(1)).
There was a whole organized state power structure, and the extra-legal executions did not constitute isolated or sporadic facts, but a behavior pattern by the State in the context of its above mentioned strategy, leading to a truly criminal practice, applying resources and material means of the State itself.
9. The modus operandi, as identified by the CVR and recapped by this Court, consisted in the
"selection of the victim, detention, deposit of the victim in a detention center, contingent transfer to other detention center, interrogation, torture, processing of the data obtained, decision to eliminate the victim, physical elimination, concealment of victim´s remains and use of State resources.” The common denominator in the whole process was “the denial of the detention itself and denial of any information on what had happened to the arrested person. That is, the victim entered an established circuit of clandestine detention, which only very lucky people could survive.” (para. 80(5)).
10. Regarding the “methods applied to destroy evidence” of the crimes committed, the Court remembers that the CVR itself pointed out that these included, among others, “mutilation or incineration” of the mortal remains of the victims (para. 80(7). In this case of La Cantuta, the Court considered proved that the “incinerated bone remains” found in Cieneguilla were part of a “secondary burial,” as they “had already remained in other graves” and, after having been removed and burnt (“the bodies were burnt in state of putrefaction”), were “taken and buried in the Chavilca region” (para. 85(34). That is, the violation of the principle of human dignity took place not only in life, but also after life.
11. It is notorious and public that the illegal detention, followed by extra-legal execution of the victims of cases of both Barrios Altos and La Cantuta, were perpetrated by the “death squad” called “Grupo Colina.” This extermination group was directly organized within the hierarchical structure of the Peruvian State armed forces, and
"carried out a State policy consisting in the identification, control and elimination of those persons suspected of belonging to insurgent groups or who opposed to the government of former President Alberto Fujimori. It operated through the implementation of systematic indiscriminate extra-legal executions, selective killings, forced disappearances and tortures.” (paras. 80(18)).
12. An account of the history of "Grupo Colina" says that former President A. Fujimori and his consultant V. Montesinos made that choice so as to combat terrorism with the “clandestine war” of “State terrorism,” performing “kidnapping, forced disappearances and extra-legal executions,” and using the “perverse resource of transferring liabilities to lower ranks,” thus eluding “their direct liability”; however, the so called “Grupo Colina” was authorized to act “from the highest Government instance.”¹⁸⁹ The crimes of both Barrios Altos and La Cantuta constituted an unequivocal and conclusively proven part of a State policy.¹⁹⁰ An analysis of the Final Report of the CVR confirms, fully detailed, the criminal operations of “Grupo Colina,” with express reference and accounts of the crimes of both Barrios Altos and La Cantuta as part of a behavior pattern of criminal conduct on the part of the State.¹⁹¹
13. Considering the above, it is concluded that we are, in the case of La Cantuta and in the context of this sinister State strategy, unequivocally in the presence of a State crime which also -as set forth by this Judgment- counted on the State concealment of the facts and the systematic obstruction of the investigations, including the destruction of evidence of the serious crimes committed. In this case of La Cantuta, it was conclusively proven that premeditation (mens rea), planning and commission of the crime, under aggravated circumstances, and the subsequent concealment of the facts, were executed by numerous State agents, with State resources (including those derived from income tax contributors), in a command line which involved both the perpetrators of the atrocities and the highest authorities of the State power. Facts reveal a horrendous investment of the State purposes, and they constitute an unequivocal State crime, with all its legal consequences (cf. infra).

3. Acknowledgement of Aggravated Liability by the Respondent Government itself.
14. In this case of La Cantuta, the respondent Government itself, in a constructive attitude in the course of the adversarial proceedings, acknowledged international liability both before the Commission and before this Court, although not encompassing all the facts and their legal consequences. Before the Court, it did so both in its response to the application (chapter V) and in its written closing arguments (chapter III). Also, as significantly recorded by the Court in this Judgment (para. 44), in its oral and written closing arguments, the respondent Government itself expressly acknowledged that “international crimes” had been committed. The State expressed, in its own words that
"(...) It reiterates (...) that such acts and omissions constitute international unlawful facts which generate international liability of the State. They constitute crimes according to domestic law and international crimes that the State must punish. (...)" (para. 44).
15. What do those jusinternationalists, who keep on insisting to declare that there can be no State crime, have to say before this manifestation of the State itself, before the overwhelming evidence of the facts and proof in this case of La Cantuta? How long will they remain in the shadows of their lack of conscience and sensitivity regarding the fate of the victims of human brutality? When will they awake to the need to contribute to the credibility of the legal profession, and stop closing their eyes to the State criminality?
16. In this Judgment of the case La Cantuta, the Court determined the scope of the consequences of the State acknowledgement regarding to the legal claims (paras. 52-54). Furthermore, it observed that it was not an isolated or single manifestation by the State, but a significant manifestation to which others have been added, remembered by the Court in this Judgment:
"The facts of this case have been classified by the CVR, the domestic judicial bodies and by the State´s representative before this Court, as “international crimes” and “crimes against humanity” (...). The extra-legal execution and forced disappearance of the alleged victims were perpetrated in a context of generalized and systematic attack against sectors of the civil population.

Merely pointing out (...) that the Court considers it acknowledged and proven that the planning and execution of detention and subsequent cruel, inhumane and degrading treatment, extra-legal execution or forced disappearance of alleged victims, carried out in a coordinated and concealed way by members of the military forces and the Colina Group, could not have passed unnoticed to or have occurred without the orders of the highest ranks of the Executive Power and the then military forces and intelligence bodies, especially the chiefs of intelligence and the President of the Republic himself” (paras. 95-96).

17. The Court added that, regarding the violation of the right to life – acknowledged by the respondent Government - of the professor and the nine students kidnapped at the University of La Cantuta, “the case facts were the result of an operation executed, coordinated and concealed by the Grupo Colina, with the knowledge and superior orders of the intelligence services and of the then President of the Republic himself” (para. 114). When referring to the forced disappearance of the victims, the Court accurately remarked that
"the international liability of the State is aggravated when the disappearance is part of a systematic pattern or practice applied or tolerated by the State, as it constitutes a crime against humanity which implies a crass abandonment of the essential principles on which the Inter-American system is grounded.

(...) The international liability of the State is configured in an aggravated manner due to the context in which the facts were perpetrated, (...) as well as the flaws regarding protection and investigation obligations (...).”¹⁹²

18. Also, this Court has ruled that the respondent Government itself has acknowledged “the partiality of the judges of the criminal courts in the trial of the La Cantuta events" (para. 144). The Court repeated its understanding in the sense that “in a democratic constitutional state, the jurisdiction of military criminal courts must be restrictive and exceptional” (para. 142). In this case, there was “manipulation of legal and constitutional mechanisms,” obstruction of the investigations of the ordinary justice, “irregular deviation of the military jurisdiction investigations,” with the aim of “securing impunity for those responsible” (para. 143).
19. It is significant that, regarding that matter, the Peruvian Constitutional Court itself, in its Judgment of November 29, 2005 (re: S. Martín Rivas), warned that considering the circumstances of the cas d'espèce,
"there is evidence that the purpose of the criminal process filed within the military jurisdiction environment was to prevent the petitioner from being held liable for the acts charged with. Those circumstances are related to the existence of a systematic plan to promote impunity regarding human rights and crimes against humanity, particularly regarding to acts committed by Grupo Colina, to which the petitioner is linked.

In fact, that systematic plan is expressed by: (i) the deliberate prosecution of ordinary crimes by military bodies (...); (ii) the enactment, during that term, of amnesty laws 26,479 and 26,462. (...).”¹⁹³

20. In the same Judgment, the Peruvian Constitutional Court added that, also in the case of Barrios Altos, in its opinion, "there are numerous objective elements which show that the prosecution of the petitioner for crimes against humanity (...) was not really aimed at investigating and punishing him in an effective way.”¹⁹⁴ That is to say, the Peruvian Constitutional Court itself set forth the manipulations, on the part of the military jurisdiction, to conceal a criminal State practice, and to guarantee the impunity of those who were liable.
21. Said Law denial was not disregarded - it could not be so - by this Court. In this Judgment in the case of La Cantuta, this Court, coherently with its Judgments of Barrios Altos (2001) and Almonacid et al. (2006), pondered, specifically regarding the legal concept of res judicata, that the principle of non bis in idem is not applied when the process, not independently or impartially instituted, boiled down to exempt the accused from his criminal liability, thus configuring and “apparent” or “fraudulent” res judicata (para. 153), which constitutes the Law denial itself.
22. Finally, the extensive and detailed Final Report of Peru´s CVR determines the facts which configured the State criminal practice during the period at issue. The cases of La Cantuta (1992),¹⁹⁵ Barrios Altos (1991),¹⁹⁶ Huilca Tecse (1992),¹⁹⁷ among others, are therein fully described with high degree of detail. When determining the “legal frame of forced disappearance in Peru,” the said Final Report of the CVR repeatedly took into account, when developing its arguments, the jurisprudence of this Inter-American Court.”¹⁹⁸

II. Towards the End of Self-Amnisties: The Contribution of the Inter-American Court to the Prevalence of the Law.
23. In its Judgment in the Case of “The Last Temptation of Christ” (Olmedo Bustos et al.) vs. Chile, Judgment of February 5, 2001), this Court stated that the general duty imposed by Article 2 of the American Convention requires that each State Party adopts all the necessary provisions so that what is established by the Convention is effectively fulfilled within the domestic law system, which means that the State must adapt its acting to the protection rules and regulations of the Convention (para. 87). Seven months later, the Court remembered said obiter dictum in its historical Judgment in the case of Barrios Altos, regarding to Peru (Judgment Construction of September 3, 2001), in relation to the “duty of the State to suppress, from its legal system, those rules in force which imply a violation” of the American Convention (para. 17), and added:
"The enactment of a law expressly contrary to the obligations assumed by the State Party of the Convention constitutes per se a violation of the latter and generates international liability of the State. Consequently, the Court considers that, given the nature of the violation of amnesty laws No. 26,479 and 26,492, the ruling of the Judgment on the merits of the case in Barrios Altos has general effects (...)" (para. 18).
24. In the case of El Amparo (Reparations, Judgment of September 14, 1996), regarding Venezuela, I stated, in my Dissenting Opinion, that the existence of a legal provision of domestic law itself can, per se, create a situation which directly affects the rights protected by the American Convention, due to the risk or actual threat that its applicability represents, without the need to expect the occurrence of detriment (paras. 2-3 and 6). In the same case of El Amparo (Interpretation of Judgment, Ruling of April 16, 1997), and in my subsequent Dissenting Opinion, I insisted in my understanding in the sense that
"A State may (...) have its international liability compromised, in my opinion, merely by approving and enacting a law in conflict with its conventional obligations of protection, or by the lack of adaptation of its domestic law to guarantee the faithful fulfillment of said obligations, or by the non adoption of the necessary legislation to fulfill the latter.

(...) The tempus commisi delicti would extend in such a way to encompass the whole period during which the national laws remained in conflict with the conventional obligations of protection, thus entailing the additional obligation to remedy the subsequent detriments resulting from such “continued situation” during the whole period under analysis” (paras. 22-23).

25. I reaffirmed the same position in my Concurring Opinion in the above mentioned case of “The Last Temptation of Christ”(paras. 2-40), where I pondered that, considering that the tempus commisi delicti is the same as that of the approval and enactment of a law incompatible with a human rights treaty, since then compromising the international liability of the State, the modifications in the domestic legal system of a State Party, necessary to its harmony with the rules and regulations of such a treaty, may constitute, within the context of a specific case, a way of non-monetary compensation under such treaty. The Judgment of the Court in this case was adopted on February 5, 2001.
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 Library¹⁹⁹ 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. (...)

We do not have to ever forget that the State was originally conceived aiming at common welfare. The State exists for the human being, and not vice versa. No State can be considered above the Law, which regulations´ final addressees are human beings. (...) We have to firmly say and repeat it, as many times as necessary: in the scope of International Human Rights Law, the so called “laws” of self-amnesty are not actually laws: they are a mere aberration, an inadmissible affront to the legal conscience of humanity” (paras. 5-6 and 26).
29. Subsequent to the Judgment on the merits, the above mentioned Construction of Judgment in the same case of Barrios Altos, explained that the ruling by the Court regarding the merits, given that the nature of the violation by amnesty laws No. 26,479 and 26,492, "has general effects” (operative paragraph No. 2). Consequently, said laws of self-amnesty are inapplicable (in any given situation, whether before, during or after their alleged “adoption”), they are simply not “laws.” The Court explanation has had, since then, a sensitive impact in the domestic legal system, not only of the Peruvian State, but also of other South-American States. Regarding to the responding Government in the cas d'espèce, as it is made clear by the Court in this Judgment of the case La Cantuta,
“the Judgment issued in the case of Barrios Altos is fully incorporated into the domestic legal system. (...) If that Judgment was conclusive that it had general effects, such declaration makes it ipso jure part of Peru's domestic law, which is shown in the fact that such Judgment has been applied and interpreted by state bodies.
The ab initio incompatibility of the amnesty laws with the Convention has generally materialized in Peru ever since it was pronounced by the Court in the judgment in the case of Barrios Altos; that is, the State has suppressed any effects that such laws could have had.” (paras. 186-187)

30. Recently, the Inter-American Court took a new step in the evolution of the subject matter, in the same line of the Barrios Altos Judgment, in its Judgment on the case Almonacid Arellano y Otros vs. Chile (dated September 26, 2006). The Court declared that “when expecting to grant an amnesty to those responsible for crimes against humanity, decree law No. 2191 is incompatible with the American Convention and, therefore, lacks legal effects under said treaty” (operative 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 Commission Delegate (Commissioner Paolo Carozza), lucidly and correctly stated that the amnesty laws of the Fujimori regime had to be abolished (term used by this Court in the Judgment of Barrios Altos) so as to make it clear that they never had validity regarding the American Convention, being contrary to the jus cogens (cf. infra).
34. Also, an equally lucid and substantial amicus curiae submitted by the Institute of Legal Defense -Instituto de Defensa Legal (IDL)- with offices in Lima, Peru, urged the Court to declare self-amnesty laws No. 26479 and No. 26492 inexistent (pp. 4 and 40), remarking that the international courts jurisprudence, among which that of the Inter-American Convention, has immediate effects, direct application and is binding, thus incorporating “directly in the Peruvian corpus juris" (p. 30). The said amicus curiae of the IDL added that those self-amnesty laws “are inexistent,” as they “exceeded the intangible limit (constitutional guarantee of human rights”, and were placed “in an extralegal and extraconstitutional scope” (p. 38). The amicus curiae of the IDL concluded that
"there is a repeated, consistent and uniform practice of the Peruvian Attorney General Office and the Peruvian Judicial Power in the sense that such self-amnesty laws lack legal effects and do not constitute an obstacle for starting the investigations, prosecution and punishment of human rights infringers; there is a set of decisions issued by the Constitutional Court understanding that, within the domestic scope and according to the text of the Peruvian Constitution, the procedural obstacles hindering the punishment of human rights violations are inadmissible, and that the jurisprudence of the Inter-American Human Rights Court is of direct application in the domestic legal system (...).

For the same reasons, it is not necessary that the Peruvian State adopts any additional provisions to those already assumed, in the domestic law, to guarantee the lack of legal effects of self-amnesty laws in an effective way. (...) In the particular case of the Peruvian self-amnesty laws, it is worth mentioning that, considering their non-existing condition, they are inefficient from their origin (as they were not part of the domestic legal system they produced no legal effect whatsoever)” (p. 39).

35. The above mentioned participants of the public hearing before this Court, as well as the aforementioned amicus curiae, expressed a common concern, and also a common purpose, even though through arguments of different nuances. I understand that the Inter-American Court has paid attention to this common concern and has contributed to this also common purpose, when determining, in a very clear way, that the so called self-amnesty “laws” “were unable to generate effects, do not keep them at present, nor can they be generated in the future.”²⁰⁰ Said “laws” of self-amnesty are not truly laws, but a legal aberration, an affront to the recta ratio.