MARGUŠ v. CROATIA JUDGMENT 39
compatibility with the Convention includes amnesties of serious human rights
violations and is not limited to those which are denominated, ‘self-amnesties.’
Likewise, as has been stated prior, the Court, more than the adoption process and the
authority which issued the Amnesty Law, heads to its ratio legis: to leave unpunished
serious violations in international law committed by the military regime. The non-
compatibility of the amnesty laws with the American Convention in cases of serious
violations of human rights does not stem from a formal question, such as its origin,
but rather from the material aspect as they breach the rights enshrined in Articles 8
and 25, in relation to Articles 1(1) and 2 of the Convention.
176. This Court has established in its jurisprudence that it is conscious that the
domestic authorities are subject to the rule of law, and as such, are obligated to apply
the provisions in force of the legal code. However, when a State is a Party to an
international treaty such as the American Convention, all of its organs, including its
judges, are also subject to it, wherein they are obligated to ensure that the effects of
the provisions of the Convention are not reduced by the application of norms that are
contrary to the purpose and end goal and that from the onset lack legal effect. The
Judicial Power, in this sense, is internationally obligated to exercise ‘control of
conventionality’ ex officio between the domestic norms and the American
Convention, evidently in the framework of its respective jurisdiction and the
appropriate procedural regulations. In this task, the Judicial Power must take into
account not only the treaty, but also the interpretation that the Inter-American Court,
as the final interpreter of the American Convention, has given it.”
66. More recently, in the case of The Massacres of El Mozote and
Nearby Places v. El Salvador ((merits, reparations and costs), judgment of
25 October 2012, Series C No. 252) the Inter-American Court, in so far as
relevant for the present case, held as follows (footnotes omitted):
“283. In the cases of Gomes Lund v. Brazil and Gelman v. Uruguay, decided by this
Court within the sphere of its jurisdictional competence, the Court has already
described and developed at length how this Court, the Inter-American Commission on
Human Rights, the organs of the United Nations, other regional organizations for the
protection of human rights, and other courts of international criminal law have ruled
on the incompatibility of amnesty laws in relation to grave human rights violations
with international law and the international obligations of States. This is because
amnesties or similar mechanisms have been one of the obstacles cited by States in
order not to comply with their obligation to investigate, prosecute and punish, as
appropriate, those responsible for grave human rights violations. Also, several States
Parties of the Organization of American States, through their highest courts of justice,
have incorporated the said standards, observing their international obligations in good
faith. Consequently, for purposes of this case, the Court reiterates the inadmissibility
of ‘amnesty provisions, provisions on prescription, and the establishment of
exclusions of responsibility that seek to prevent the investigation and punishment of
those responsible for grave human rights violations such as torture, summary,
extrajudicial or arbitrary execution, and forced disappearance, all of which are
prohibited because they violate non-derogable rights recognized by international
human rights law.’
284. However, contrary to the cases examined previously by this Court, the instant
case deals with a general amnesty law that relates to acts committed in the context of
an internal armed conflict. Therefore, the Court finds it pertinent, when analyzing the
compatibility of the Law of General Amnesty for the Consolidation of Peace with the
international obligations arising from the American Convention and its application to