A/HRC/36/50/Add.1
measures, including prosecutions, truth commissions and historical and cultural works. One
example of this advance concerns the strengthening of professional competence in forensics
since the early 1980s, when the Abuelas de la Plaza de Mayo first engaged United Statesbased scientists to help them trace their missing children and grandchildren. 23 Emerging out
of the Argentine experience, a small but dedicated group of scientists pioneered new
methods of DNA testing, which was put into practice also in Chile, Guatemala and Peru.
These groups were again called on for their expertise by the International Tribunal for the
Former Yugoslavia and the International Tribunal for Rwanda. In 1996, the International
Commission on Missing Persons was created to investigate the roughly 40,000 people
missing as a result of the conflict in the former Yugoslavia. The field of forensic
investigation of human rights crimes has proliferated, with centres of expertise now set up
in many countries.
36.
Documentation has also improved, aided by technological advances and
international cooperation. Professional standards and methodologies for taking witness
testimony and collecting official and unofficial documents have been strengthened, and are
all critical to ongoing or later transitional justice efforts. Technological innovations have
helped create tools for the documentation and analysis of large sets of data. Archiving,
including preservation but also classification and access, has benefited immensely from
new technologies.24
B.
Advances in prosecutions
37.
Prosecutions provide recognition to victims as rights holders; they provide an
opportunity for the legal system to establish its trustworthiness; they strengthen the rule of
law; and finally, in doing all of the above, they can contribute to social reconciliation. The
aftermath, however, of gross violations of human rights and serious violations of
international humanitarian law pose particular challenges for prosecutions. Usually only a
fraction of those who bear responsibility for violations are ever investigated, because of the
high number of suspected perpetrators, the relative scarcity of financial and human
resources, capacity and will, and the fact that in many transitions the predecessor regime or
forces maintain a certain power.
1.
Right to justice: coping with amnesties
38.
Some courts have nullified amnesties outright, articulating the limits of legislative
power to grant amnesties in two main ways. First on constitutional grounds, as the Peruvian
Constitutional Tribunal did, by declaring two successive amnesty laws unconstitutional and
arguing that they were part of a plan to guarantee impunity at odds with article 1 of the
Peruvian Constitution which establishes that “the defense of the human person and respect
for [his or her] dignity are the supreme purpose of society and the State”.25
39.
Second, some courts have appealed to international law or jurisprudence to nullify
amnesty laws. The Supreme Court of Argentina, for instance, in the Simón case, declared
the Final Stop and Due Obedience Laws unconstitutional. The Supreme Court argued in
that case that article 75 (22) of the Constitution, which establishes that “treaties and
concordats have a higher hierarchy than laws”, makes various instruments, including the
Universal Declaration of Human Rights, the International Covenant on Civil and Political
Rights and the American Convention on Human Rights, constitutional, and that those
instruments limit the power of the legislature to grant such amnesties. 26
40.
Even countries that have not nullified amnesties have found ways of mitigating their
worst consequences. One method has been to argue that the very concept of amnesty calls
23
24
25
26
Adam Rosenblatt, Digging for the Disappeared (Stanford University Press, 2015).
A/HRC/30/42.
Santiago Enrique Martín Rivas, Exp. No. 679-2005-PA/TC, 2 March 2007, Constitutional Tribunal of
Peru, especially paras. 56 ff.
Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc., S.1767.XXXVIII, 14 June 2004,
Supreme Court of Argentina, para. 16.
9
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