En la Revista German Law Journal (No. 12), Christina Binder, publicó el artículo titulado The Prohibition of Amnesties by the Inter-American Court of Human Rights. A continuación copio parte de la introducción del artículo:
“The Inter-American Court of Human Rights has proven a particularly active defender of human rights in Latin America. The Court has developed an innovative and creative jurisprudence with respect to all kinds of human rights violations, including forced disappearances, extrajudicial killings, violations of indigenous peoples’ rights or those of undocumented migrants. Legal scholars have praised the Inter-American Court for its effective protection of human rights and even the International Court of Justice has drawn on the judgments of the Inter-American Court. The Inter-American Court has, however, also been criticized for adopting an overly broad standard of review, exceeding the competences conferred on it in the American Convention on Human Rights (ACHR, Convention) and for its detailed reparation orders which encroached on the states’ internal domestic affairs. Put differently, the Court was blamed for being a too active judicial lawmaker. It has therefore been suggested that the Inter-American Court would be well advised to pay more attention to national sovereignty and the consent of the regional community of states when exercising its adjudicative function.
The Inter‐American Court’s proactive role with respect to a crucial Latin American legacy is especially telling: The passing of amnesty laws and decrees has shielded perpetrators of grave human rights violations from prosecution. The Court developed some of its most innovative and far‐reaching approaches to the effective protection of human rights in its amnesty jurisprudence. The Inter‐American Court—adopting a radically monist approach to the relationship between international and national law—gave direct effect to its judgments, determined that national laws lacked legal effects, and also obliged domestic courts to engage in a form of decentralized conventionality control (control de convencionalidad), whereby the domestic courts are prohibited from applying national laws which violate the ACHR.
This contribution will examine the lawmaking role of the Inter‐American Court and its inherent tension with democratic self‐determination. This will be done with special focus on the Court’s jurisprudence on national amnesty legislation, which provides for impunity in cases of grave human rights violations. After a brief overview of the Court’s role in the Inter‐American system for the protection of human rights (part B), the Court’s exercise of its judicial functions will be scrutinized with special focus on its amnesty jurisprudence (part C). It will be argued that the Inter‐American Court considerably expands the competences originally attributed to it in the ACHR. It is against this background that the reception of its amnesty jurisprudence at the national level will be examined and evaluated (part D). Part E concludes.”