II.       PRINCIPLES AND STANDARDS FOR OVERCOMING ARMED CONFLICTS
AND THEIR CONSEQUENCES FOR THE CIVILIAN POPULATION

 

10.      The successful development of a process of demobilization of actors involved in a prolonged internal armed conflict that aspires to the non-repetition of crimes of international law,[8] violations of human rights, and grave breaches of international humanitarian law calls for the clarification of the violence and reparation of its consequences.  Realistic expectations of peaceful coexistence under the rule of law should be based on measures that address the challenges posed by the construction of a culture of tolerance and the rejection of impunity.  The international community has identified a series of guidelines with respect to truth, justice, and reparations that draw on the experiences of different societies and the principles of law reflected in the obligation of states to administer justice in keeping with international law.

 

11.      The norms of the inter-American system that are binding on the Member States of the OAS are part of this body of law. The experiences in this hemisphere in the context of peacemaking efforts have led both the Commission and the Inter-American Court of Human Rights to interpret, among other things, the obligation of the Member States to ensure compatibility of recourse to the granting of amnesties or pardons for persons who have risen up in arms against the State with the State’s obligation to clarify, punish, and make reparation for violations of human rights and international humanitarian law.

 

12.      The obligations of the Member States of the Organization of American States in the area of human rights derive from the Charter of the OAS[9] and the American Declaration of the Rights and Duties of Man[10] as well as the human rights treaties ratified by them.  The States party to the American Convention on Human Rights have obligated themselves to respect the human rights and fundamental freedoms recognized in the Convention, and to ensure for all persons subject to their jurisdiction the free and full exercise of rights and freedoms, without any discrimination on grounds of race, color, sex, language, religion, opinion, national or social origin, economic status, birth, or any other social condition.  In addition, they have agreed to adopt legislative and other measures that may be necessary for giving effect to the rights and freedoms protected in the American Convention in those cases in which the exercise of those rights and freedoms is not yet guaranteed.[11]  In addition to the American Convention, the Member States have adopted other treaties to complement and expand the rights protected therein.[12]

 

13.      These instruments should be interpreted and applied in light of the norms and principles that govern international legal obligations generally, and human rights obligations in particular, primarily the principles of good faith and of the supremacy of international treaties over domestic law.[13]  In addition, the states’ commitments under international human rights law are applicable both in peacetime and in the context of armed conflicts.[14]  In this context, it has been recognized that the states’ human rights obligations differ from their other international commitments in that, on ratifying such treaties, they bind themselves not only in relation to other states parties, but also, and mainly, with respect to the persons under their jurisdiction. Moreover, the norms of interpretation of the American Convention require that the organs of protection – the Inter-American Commission and the Inter-American Court – consider higher standards of protection provided for in other treaties ratified by the State. Those treaties include the International Covenant on Civil and Political Rights,[15] the United Nations Convention relating to the Status of Refugees[16] and its Additional Protocol,[17] the United Nations Convention on the Rights of the Child,[18] the International Convention on the Elimination of All Forms of Racial Discrimination,[19] the Vienna Convention on Consular Relations,[20] and the Geneva Conventions of 1949[21] and their Additional Protocols of 1977.[22]

 

14.      This normative framework, in force for most of the Member States of the OAS, is reinforced by customary law as well as by the guidelines agreed upon in the context of intergovernmental organizations such as the United Nations.  The international provisions in force for the Member States, their interpretation through the case-law and the guidelines compiled by the intergovernmental organs coincide in identifying truth, justice, and reparation as fundamental and inescapable challenges in rebuilding a culture of peace, tolerance, respect for the law, and rejection of impunity. The IACHR will next develop these concepts and explore the standards and obligations arising therefrom.

 

A.       The right to know the truth about the crimes of international law perpetrated during the conflict

 

15.      One of the most serious and immediate effects of the large-scale violence of internal armed conflicts consists of what many – challenging the language – define as the “invisibilization” of the victims.[23]  The absence of effective remedies for attaining the intervention of State institutions leaves the most unprotected sectors of the civilian population – indigenous peoples and Afro-descendant communities, displaced children and women, to cite some examples — at the mercy of armed actors who opt for strategies that not only generate terror and the forced displacement of survivors, but that also have the effect of rendering it difficult to clarify what happened, relegating those killed to oblivion, and propagating the state of confusion that obstructs deciphering the causes of violence and putting an end to them through the rule of law.

 

16.      In the face of this situation, the right to truth should not be restricted through legislative or other measures.  The IACHR has established that the existence of factual or legal impediments, such as adopting amnesty laws, to access to information about the facts and circumstances surrounding the violation of a fundamental right, and that stand in the way of initiating the judicial remedies in the domestic jurisdiction, are incompatible with the right to judicial protection provided for at Article 25 of the American Convention.[24]  The process aimed at determining the truth requires the free exercise of the right to seek and receive information, the formation of investigative commissions,[25] and the adoption of the measures needed for authorizing the judiciary to undertake and complete the respective investigations.[26]

 

17.      The Inter-American Court has established in its case-law that the right to the truth is subsumed in the right of the victim or his or her next-of-kin to obtain from the competent organs of the State clarification of the facts and the prosecution of the persons responsible in keeping with the standards of Articles 8 and 25 of the American Convention.[27]  For its part, the Human Rights Committee of the United Nations has also ruled on the duty of states to judicially determine the circumstances in which human rights violations take place and the responsibility of those implicated, as part of the reparation owed to the victim’s next-of-kin.[28]

 

18.      In any event, the enjoyment of the right to know the truth regarding the commission of crimes of international law is not limited to the victims’ next-of-kin. The Inter-American Commission and the Inter-American Court have stated that societies affected by violence have, as a whole, the unwaivable right to know the truth of what happened as well as the reasons why and circumstances in which the aberrant crimes were committed, so as to prevent such acts from recurring.[29]  Society as a whole has the right to learn of the conduct of those who have been involved in committing serious violations of human rights or international humanitarian law, especially in the case of mass or systematic violations; to understand the objective and subjective elements that helped create the conditions and circumstances in which atrocious conduct was perpetrated, and to identify the legal and factual factors that gave rise to the appearance and persistence of impunity; to have a basis for determining whether the state mechanisms served as a context for punishable conduct; to identify the victims and the groups they belong to as well as those who have participated in acts victimizing others; and to understand the impact of impunity.[30]

 

19.  These principles and standards are particularly relevant in situations in which the ferocity of the methods used by the actors in the conflict and the constant acts of retaliation against the civilian population, human rights defenders, and officials willing to investigate complaints diligently and to administer justice, lead surviving victims and witnesses to remain silent. In these cases, intimidation, the suppression of evidence, and the deficient functioning of the justice system all compound the silence of the victims and witnesses, contributing to impunity and the repetition of crimes of international law.

 

B.       The right to justice and the judicial clarification of crimes of international law perpetrated during the conflict

 

20.  Whenever the conduct of those who participate in the armed conflict results in the commission of, inter alia, assassinations, forced disappearances, rape, forced movement or displacement, torture, inhumane acts aimed at intentionally causing death or serious harm to physical and psychological integrity, attacks on the civilian population or their property, and recruitment of boys and girls under 15 years of age,[31] the States have, in-keeping with customary international law and treaty law, the peremptory obligation to investigate the facts and prosecute and punish the persons responsible.  These are imprescriptable crimes of international law, not subject to amnesty, which, as they have not been duly clarified, may give rise to the international responsibility of the State and open the door to universal jurisdiction to establish the individual criminal liability of the persons involved.[32]

 

21.  The states are under an obligation to combat impunity by all legal means available, since it fosters the chronic repetition of human rights violations and the total defenselessness of the victims and their next-of-kin.[33]  In the inter-American system, this obligation of the States is reflected in Articles XVIII and XXIV of the American Declaration[34] and Articles 1(1), 2, 8, 25 of the American Convention.[35]  Pursuant to these provisions and their authoritative interpretation, the Member States of the OAS have the duty to organize the government apparatus and all the structures through which government authority is exercised so that they are capable of legally ensuring the free and full exercise of human rights, and to prevent, investigate, prosecute, and punish their violation.  This obligation is independent of whether the perpetrators of the crimes are state agents or private individuals.[36]  Where crimes of public action are concerned, i.e. subject to prosecution sua sponte, it is up to the State to bring the criminal action, and it is responsible for taking the initiative to set the procedure in motion, in compliance with its obligation to guarantee the right to justice for the victims and their next-of-kin, seriously and not as a mere formally condemned ex ante to be fruitless.[37]

 

22.  The protections derived from the right to due process and judicial protection applicable in international and non-international armed conflicts, provided for in the Geneva Conventions, correspond substantially to the protections of international human rights law, and require that the states prosecute and punish persons who commit or order the commission of gross violations of international humanitarian law.[38]  No derogation from these obligations is allowed on grounds of the continuation of the conflict. In those cases in which, for example, international humanitarian law prescribes minimal due process standards, the states cannot resort to derogations permissible under international human rights law.  This view finds support in Articles 27 and 29 of the American Convention, prohibiting derogations inconsistent with a state’s other obligations under international law as well as any interpretation of the Convention that restricts the effective exercise of a right or freedom recognized pursuant to another convention to which the state is a party.[39]

 

23.  Some states affected by internal armed conflicts and their consequences have issued amnesty laws when implementing mechanisms for achieving peace and national reconciliation.  Nonetheless, the granting of amnesties and pardons should be limited to punishable conduct in the nature of political crimes or common crimes linked to political crimes insofar as, having a direct and close relationship with the political criminal conduct, they do not constitute serious violations under international law.  Those responsible for committing such crimes should not benefit unduly from grounds of exclusion from punishment, such as the prescription of the crime and prescription of the punishment, the granting of territorial or diplomatic asylum, the refusal to extradite a person for the commission of crimes punished by international law, or the granting of amnesties or pardons.[40]

 

24.  In this sense, the IACHR has consistently established that while the adoption of provisions aimed at granting an amnesty to persons responsible for the crime of taking up arms against the state may be a useful tool in the context of effort to achieve peace, amnesty laws as well as similar legislative measures that impede or consider concluded the investigation and prosecution of crimes of international law impede access to justice and render ineffective the obligation of the states party to respect the rights and freedoms recognized in the Convention and to ensure their free and full exercise.[41]

 

25.  For its part, the Inter-American Court of Human Rights has emphasized that the states party to the American Convention cannot invoke provisions of domestic law, such as amnesty laws, to fail to abide by their obligation to ensure the complete and proper functioning of the justice system.[42] In its judgment in the Barrios Altos Case it established that

 

all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.[43]

 

The Court concluded that, as these amnesty laws were incompatible with the American Convention, they had no legal effect and could not constitute an obstacle to investigating, identifying, and punishing the persons responsible for violations of rights enshrined in the American Convention.[44]

 

26.  In summary, whenever amnesty laws or similar legislative measures render ineffective and meaningless the obligation of the states party to ensure judicial clarification of the facts of crimes of international law, they are incompatible with the American Convention, independent of whether the violations in question may be attributed to state agents or private persons.

 

27.  The states must adopt the measures necessary to facilitate victims’ access to adequate and effective remedies both for reporting the commission of these crimes and to attain reparation for the harm suffered and in this way help prevent their repetition.  The “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law” provide that the states must: (a) make known, by official and private mechanisms, all remedies available against violations of international human rights and humanitarian law norms; (b) adopt, during judicial, administrative, or other proceedings that have a negative impact on the victims’ interests, measures to protect their privacy, as appropriate, and guarantee their security, and that of their next-of-kin and witnesses against any act of intimidation or retaliation; and (c) use all appropriate diplomatic and legal means for the victims to be able to exercise their right to pursue remedies and obtain reparation for violations of international human rights and humanitarian law norms.[45]

 

28.  Observance of the rule of law requires that individuals, institutions, and the state itself act under the rule of its laws, consistent with the principles of non-discrimination, legality, due process, and independence of the judiciary.  The right to an effective remedy before the competent national judges or courts is one of the basic pillars of the rule of law in a democratic society,[46] and international law demands that the states guarantee that human rights violations are investigated, that the persons responsible are prosecuted and punished, and that they provide as well for reparation for the harm caused the victims.  The Inter-American Court has highlighted the intrinsic connection between the duties of the state to respect, guarantee, and uphold human rights, and effective judicial protection.[47]  In this regard, the Court has indicated that in order to fully guarantee the rights recognized by the American Convention, it does not suffice to investigate the facts and prosecute the persons responsible, but it is necessary, as well, for the state activity be aimed at making reparation to the injured party.

 

C.      Victims’ right to reparation for the harm caused

 

29. The equality of citizens before the law and legal institutions is one of the fundamental aspects of the rule of law. Re-establishing the conditions of equality that make it possible for the victims of the conflict to recognize their status as citizens and regain trust in the institutions is of fundamental importance for attaining peace.  The victims of crimes committed during an armed conflict have the right to adequate reparation for the harm suffered, which should take the form of individual measures of restitution, compensation, and rehabilitation, measures of satisfaction generally, and guarantees of non-repetition, making it possible to re-establish their status quo ante, without discrimination.[48]

 

30.  The applicable standards establish that individual measures should be sufficient, effective, prompt, and proportional to the gravity of the crime and the extent of the harm suffered, and should be aimed at re-establishing the victim’s situation before the violation.[49]  These measures may consist of re-establishing rights such as personal liberty, in the case of persons who have been detained or kidnapped, and return to the place of residence in the case of displaced persons. In addition, the victims who have been dispossessed of their lands or properties for fear of the violence of the actors in the armed conflict have the right to restitution.[50]

 

31.  When restitutio in integrum[51] is not possible because of the nature of the crime, the persons responsible must compensate the victim or his or her next-of-kin for the damages resulting from the crime.  The state should endeavor to pay compensation to the victim when the person responsible for the illicit conduct has been unable or unwilling to carry out his or her obligations.[52]  In addition, the situation of the victim may require measures of rehabilitation such as medical and psychological care, legal services, and social support services.

 

32.  General guarantees of satisfaction require measures aimed at remedying the injury suffered by the victim, including the cessation of continuing violations; verification of the acts constituting international crimes; public and complete disclosure of the results of the investigations aimed at establishing the truth of what happened, without giving rise to unnecessary risks for the security of victims and witnesses; the search for the remains of the dead or disappeared; the issuance of official declarations or judicial decisions to re-establish the dignity, reputation, and rights of the victims and of the persons linked to them; public recognition of the events and the responsibilities; recovery of the memory of the victims; and teaching the historical truth.[53]

 

33.  Guarantees of non-repetition require that measures be adopted aimed at preventing new human rights violations.  They require dissolving parastatal armed groups; derogating laws that favor the commission of human rights violations or international humanitarian law; effective control of the Armed Forces and security forces by the civilian authorities; resorting to military courts exclusively for service-related crimes; strengthening the independence of the judiciary; protecting the work of judicial officers, human rights defenders, and journalists; training for citizens and state agents on human rights issues and compliance with the codes of conduct and ethical standards; and creating and improving mechanisms for preventive intervention and conflict resolution.[54]


 

[ Table of Contents ]

[8] The expression “crime of international law” was adopted by the Special Rapporteur Cherif Biassiouni in a final report submitted pursuant to resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report. See United Nations, Economic and Social Council, E/CN.4/2000/62 January 18, 2000, p. 3.

[9] The Member States of the OAS are – by dint of having ratified the Charter of the OAS — obligated to respect and ensure the human rights provisions that are part of the Charter. See, for example, OEA AG Res. AG/RES. 314 (VII-0/77) of June 22, 1977; OEA AG/RES. 370 (VIII-0/78) of July 1, 1978; OEA AG/RES. 1829 (XXXI-0/01) of June 5, 2001.  See also, I/A Court H.R. (Interpretation of the American Declaration on the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights), Advisory Opinion OC-10/89 of July 14, 1989, Series A No. 10, paras. 43-46; and IACHR, Report No. 48/01, Case 12,067, Michael Edwards et al. (Bahamas), Annual Report of the IACHR 2000, para. 107.

[10] The American Declaration is a source of legal obligations for all the Member States of the OAS, including those states that have not ratified the American Convention on Human Rights. See I/A Court H.R. (Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights), Advisory Opinion OC-10/89, July 14, 1989, Series A No. 10, paras. 43-46.  In addition, the Commission has established that the right to life, the right to liberty, and the right to due process and a fair trial, protected in the American Declaration, have acquired the status of customary norms of international law. IACHR Report No. 19/02, Alfredo Lares Reyes et al. (United States), Annual Report of the IACHR 2001, para. 46.

[11] See Articles 1 and 2 of the American Convention on Human Rights, adopted in San José, Costa Rica, on November 22, 1969, at the Inter-American Specialized Conference on Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev. 10, January 31, 2004.

[12] Of these, special mention should be made of: the Inter-American Convention to Prevent and Punish Torture, signed at Cartagena, Colombia, December 9, 1985, at the 15th regular session of the General Assembly; the Inter-American Convention on Forced Disappearance of Persons, adopted in Belém do Pará, Brazil, June 9, 1994, at the 24th regular session of the General Assembly; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, adopted in Belém do Pará, Brazil, June 9, 1994, during the 24th regular session of the General Assembly; and the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, signed in San Salvador, El Salvador, November 17, 1988, at the 28th regular session of the General Assembly. All of these appear in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser.L/V/I.4 rev. 10, January 31, 2004.

[13] See the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, Article 27, which provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” See also I/A Court H.R., Advisory Opinion OC-14/94, International Responsibility for the Promulgation and Enforcement of Laws in violation of the Convention (Articles 1 and 2 of the American Convention on Human Rights), December 9, 1994, Series A No. 14, para. 35, where it recognizes: “Pursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice.” See P.C.I.J., The Greco-Bulgarian Communities-Advisory opinion [1930] PCIJ 1 (31 July 1930); P.C.I.J. Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Dantzig territory - Advisory opinion [1932] PCIJ 1 (4 February 1932); P.C.I.J. Free zones of Upper Savoy and the District of Gex [1932] PCIJ 3 (7 June 1932).

[14] Article 27 of the American Convention on Human Rights establishes the grounds for suspension of guarantees in emergency situations, and the non-derogable rights. See IACHR, Report No. 5/97, Abella (Argentina), Annual Report of the IACHR 1997, para. 158; IACHR Report No. 109/99, Coard et al. (United States), Annual Report of the IACHR 1999.  See, by way of analogy, Article 4 of the International Covenant on Civil and Political Rights, and ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8, 1996, ICJ Reports 1996, which confirms that “the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.”  See also ICJ Advisory Opinion of 9 July 2004 “Legal consequences of the construction of a wall in the occupied Palestinian territory” http://www.icj-cij.org/icjwww/ idocket/imwp/imwpframe.htm, paras. 127, 128, and 129.

[15] International Covenant on Civil and Political Rights, adopted December 16, 1966, in force since 1976.

[16] UN Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150.

[17] Protocol relating to the Status of Refugees, October 4, 1967, 606 U.N.T.S. 267.

[18] United Nations Convention on the Rights of the Child, Resolution AG 44/25, Annex 44, UN GAOR Supp. (No. 49), 167, UN Doc. A/44/49 (1989), November 20, 1989.

[19] International Convention on the Elimination of All Forms of Racial Discrimination, December 21, 1965, 660 U.N.T.S. 195.

[20] Vienna Convention on Consular Relations, April 24, 1963, 596 U.N.T.S. 261.

[21] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, which entered into force on October 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, which entered into force October 21; Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, which entered into force October 21, 1950, Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, which entered into force October 21, 1950.

[22] First Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, which entered into force December 7, 1978.  Second Additional Protocol relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, which entered into force on December 7, 1978.

[23] Principle V(8) and (9) of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law” defines a victim in the following terms: “A person is ‘a victim’ where, as a result of acts or omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss, or impairment of that person’s fundamental legal rights. A ‘victim’ may also be a dependant or a member of the immediate family or household of the direct victim as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm.” It goes on to make the following clarification: “A person’s status as ‘a victim’ should not depend on any relationship that may exist or may have existed between the victim and the perpetrator, or whether the perpetrator of the violation has been identified, apprehended, prosecuted, or convicted.” See United Nations, Economic and Social Council, Final Report of the Special Rapporteur Cherif Biassiouni pursuant to Resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report, E/CN.4/2000/62 January 18, 2000, p. 8.

[24] IACHR, Report No. 25/98, Cases 11,505, 11,532, 11,541, 11,546, 11,549, 11,569, 11,572, 11,573, 11,583, 11,585, 11,595, 11,652, 11,657, 11,675, and 11,705 (Chile) in Annual Report of the Inter-American Commission on Human Rights 1998.

[25] Such undertakings have worked with significant results in terms of the right to truth in some countries of the region, such as Argentina, Chile, El Salvador, Guatemala, and Peru.

[26] See IACHR, Chapter V “Areas in which steps need to be taken towards full observance of the human rights set forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights” Annual Report 1985-1986, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, p. 205.

[27] I/A Court H.R., Bámaca Velásquez Case, Judgment of November 25, 2000, Series C No. 70,
para. 201.

[28] UNHRC, Communication No. 107/1981, Uruguay, CCPR/C/19/D/107/1981, [1983] UNHRC 16 (21 July 1983).  See also, Theo Van Boven, Special Rapporteur, Commission on Human Rights, United Nations, “Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms,” Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th session, item 4 of the provisional agenda, U.N. Doc. E/CN.4/Sub.2/1993/8 (1993).

[29]  See IACHR, Chapter V “Areas in which steps need to be taken towards full observance of the human rights set forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights,” Annual Report 1985-1986, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, p. 205, and I/A Court H.R., Barrios Altos Case, Judgment of March 14, 2001, Series C No. 75.

[30] See “Patrones internacionales en materia de verdad, justicia y reparación para lograr la superación del conflicto armado interno”, Remarks by Mr. Michael Früling, Director of the Office in Colombia of the United Nations High Commissioner for Human Rights, during the “Jornadas de concertación social para superar el fenómeno de paramilitarismo,” First Committee of the Senate, April 2, 2004, Bogotá.

[31]  See Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, U.N. SCOR, 48th Session, UN Doc S/Res/827, May 25, 1993, Articles 3 and 5; Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, UN SCOR, 49th Sess., UN Doc S/Res/955, (1994), Articles 3 and 4; and the Final Act of the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, done at Rome July 17, 1998, A/CONF.183/10, Resolution E, A/CONF.183/C.1/L.76/Add.14, 8; and Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), corrected by the proces-verbaux of November 10, 1998 and July 12, 1999, entered into force July 1, 2002, Articles 6, 7, and 8.

[32] Final Act of the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, done at Rome, July 17, 1998, A/CONF.183/10, Resolution E, A/CONF.183/C.1/L.76/Add.14, Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), as corrected by the proces-verbaux of November 10, 1998 and July 12, 1999, entered into force July 1, 2002.  See Article 29 on non-applicability of statute of limitations and Article 17 on the Court’s jurisdiction. See also, “Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity” adopted by the UN General Assembly by Resolution 2391 (XXIII) of November 26, 1968.

[33] The Inter-American Court has defined impunity as the failure to investigate, prosecute, arrest, try, and impose punishment on persons responsible for human rights violations. See I/A Court H.R., Paniagua Morales et al. Case, Judgment of March 8, 1998, Series C No. 37, para. 173.  See also Bámaca Velásquez Case, Judgment of November 8, 2000, Series C No. 70, para. 211; Loayza Tamayo Case, Judgment of November 27, 1998, Series C No. 42, paras. 168 and 170.

[34] American Declaration, Article XVIII: “Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.” Article XXIV: “Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon.”

[35] Article 25 of the American Convention provides that: “(1) Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. (2) The States Parties undertake: (a) to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; (b) to develop the possibilities of judicial remedy; and (c) to ensure that the competent authorities shall enforce such remedies when granted.”

[36] I/A Court H.R., 19 Merchants Case, Judgment of July 5, 2004, para. 140; Juan Humberto Sánchez Case, Judgment of June 7, 2003, Series C No. 99, para. 142; Bámaca Velásquez Case, Judgment of November 25, 2000, Series C No. 70, para. 210; “Panel Blanca” Case (Paniagua Morales et al.), Judgment of March 8, 1998, Series C No. 37, para. 174; and Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C No. 4, paras. 172 and 174.

[37] From its first judgments, the Inter-American Court established that an investigation must have an objective and be assumed by the state as its own legal duty, and not as a step taken by private interests that depends on the procedural initiative of the victim or his or her next-of-kin, or on the private offer of evidence, without an effective search for truth by the government authorities. See I/A Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C No. 4, para. 177; Villagrán Morales et al. Case (The “Streetchildren” Case), Judgment of November 19, 1999, Series C No. 63, para. 226.

[38] See Article 49 of Convention I, Article 50 of Convention II, Article 129 of Convention III, and Article 146 of Convention IV, approved by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, August 12, 1949”, which provide: “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention…. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts….” See also Article 85 of the first Protocol Additional to the Geneva Conventions of 12 August 1949, and comment in ICRC Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Sandoz, Swinarski & Zimmermann eds., Nijhoff, 1987, pp. 991 ff.

[39] See IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/ll.116 Doc. 5 rev. 1 corr. (2002).0

[40] Commission on Human Rights, United Nations, Question of the impunity of perpetrators of human rights violations (civil and political), Final Report prepared by Louis Joinet, U.N. Special Rapporteur on Impunity, pursuant to Resolution 1996/119 of the Sub-Commission.  E/CN.4/Sub.2/1997/20 Rev. 1 (1997), Principles 26 to 35.  When it comes to judging perpetrators of crimes of international law, the penalties involving deprivation of liberty should be imposed for the corresponding offenses. Extending benefits involving reduction of penalties should depend on positive and effective actions of collaboration aimed at determining who perpetrated the offenses, their circumstances and motives, the harm caused, and –as appropriate— locating the victims’ remains. In addition, those convicted of such crimes should remain, for a reasonable time, judicially disqualified from holding official positions and performing public functions. See “Patrones internacionales en materia de verdad, justicia y reparación para lograr la superación del conflicto armado interno”, Remarks by Mr. Michael Früling, Director of the Office in Colombia of the United Nations High Commissioner for Human Rights, “Jornadas de concertación social para superar el fenómeno del Paramilitarismo,” First Committee of the Senate, April 2, 2004, Bogotá.

[41] IACHR Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, para. 41; Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993, para. 51; Reports 34/96 and 36/96, Chile, Annual Report of the IACHR 1996, paras. 76 and 78 respectively; Report 25/98, Chile, Annual Report of the IACHR 1997, para. 71; and Report 1/99, El Salvador, Annual Report of the IACHR 1998, para. 170.

[42] I/A Court H.R., Loayza Tamayo Case, (Art. 63(1) American Convention on Human Rights), Judgment of November 27, 1998, Series No. 42, para. 170.

[43] I/A Court H.R., Barrios Altos Case (Chumbipuma Aguirre et al.), Judgment of March 14, 2001, Series C No. 75, para. 41.

[44] Id. These criteria coincide with the position expressed by other intergovernmental organs. The Human Rights Committee of the United Nations stated its concern over amnesties granted by Decree-laws Nos. 26479 and 26492, and concluded that those laws were incompatible with the State’s international obligations. See Preliminary Observations of the Human Rights Committee, Peru, CCPR/C/79/Add.67, July 25, 1996. In addition, the United Nations Committee Against Torture stated its concern over the practice of promulgating amnesty laws that foster impunity in torture cases. See Summary record of the public part of the 333rd meeting: Panama and Peru. 20/05/98.  CAT/C/SR.333.

[45] See United Nations, Economic and Social Council, Final Report of Special Rapporteur Cherif Biassiouni pursuant to Resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report, E/CN.4/2000/62 January 18, 2000, p. 9.

[46] I/A Court H.R., Castillo Páez Case, Judgment, November 3, 1997, Series C No. 34, para. 82.  See also I/A Court H.R., The Mayagna (Sumo) Community of Awas Tingni Case, August 31, 2001, Series C No. 79, para. 112.

[47] I/A Court H.R., Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, Series C No. 1, para. 90.

[48] The Inter-American Court has noted that measures of reparation should tend to wipe out the effects of the violations committed. See I/A Court H.R. Mack Chang Case, Judgment of November 25, 2003, para. 237; Cantos Case, Judgment of November 28, 2002, Series C No. 97, para. 108; Caracazo Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of August 29, 2002, Series C No. 95, para. 78.  Those measures include the different ways in which a state may address its international responsibility, which under international law consist of measures of restitution, compensation, rehabilitation, satisfaction, and measures of non-repetition. See United Nations, Final report submitted by Theo Van Boven, Special Rapporteur for Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Humanitarian Law, E/CN.4/Sub.2/1990/10, July 26, 1990. See also, I/A Court H.R., Blake Case. Reparations (Art. 63(1) American Convention on Human Rights), Judgment of January 22, 1999, Series C No. 48, para. 31; Suárez Rosero Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of January 20, 1999, Series C No. 44, para. 41; Castillo Páez Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of November 27, 1998, Series C No. 43.

[49] See United Nations, Economic and Social Council, Final Report of the Special Rapporteur Cherif Biassiouni pursuant to Resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report, E/CN.4/2000/62 January 18, 2000, p. 10, Principles IX(15) and X(21)(22)(23).

[50] See interview with Salvatore Mancuso in El Espectador of November 3, 2004, in which he states: “it’s true that in the course of the conflict we have acquired some properties that have served as infrastructure for the defense scheme. You tell me that we’ve expropriated lands. I’ll tell you something: when I was trained in the self-defense scheme, the ones who were being displaced were the ranchers, the peasant farmers. In other words, displacement goes way back.”  See also, “Los señores de la tierra.  Grupos paramilitares se están apoderando, a sangre y fuego, de las tierras más valiosas del país.  Las víctimas están desesperadas y no tienen quién les devuelva su patrimonio,” in La Semana Issue No. 1152, May 31 to June 7, 2004, p. 224, in which reference is made to the methods and strategies used by paramilitary groups in different regions of the country to usurp titles through assassination, forced displacement, issuing unregistered deeds, and corruption.

[51] I/A Court H.R., Blake Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of January 22, 1999, Series C No. 48, para. 31; Suárez Rosero Case, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of January 20, 1999, Series C No. 44, para. 41.

[52] See United Nations, Economic and Social Council, Final Report of the Special Rapporteur Cherif Biassiouni pursuant to Resolution 1999/33 of the Commission on Human Rights on “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” and “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law,” attached to the report, E/CN.4/2000/62 January 18, 2000, p. 10, Principle IX(16)(17)(18)(19).

[53] Id. Principle X(25).

[54] Id.