A/HRC/45/45/Add.2 prohibits the adoption of measures aimed at perpetuating impunity.16 The Human Rights Committee considers unacceptable the exemption of perpetrators of serious human rights violations from personal legal responsibility through amnesties and prior immunities, 17 while the Inter-American Court of Human Rights considers inadmissible the establishment of amnesties, statutes of limitations and measures aimed at preventing, or voiding the effects of, a conviction,18 and the establishment of exclusion of liability clauses that seek to impede the investigation and punishment of perpetrators. 19 They also establish that penalties imposed for crimes against humanity must be commensurate with the gravity of the crimes committed.20 33. The Special Rapporteur is also concerned that some of the bills presented provide for the application of the principle of the “discretion to prosecute” – as set out in the Code of Criminal Procedure – to serious human rights violations. The application of the principle entails the discontinuance of criminal proceedings against those responsible for human rights violations who collaborate with an investigation and rules out from the outset any possibility of criminal prosecution or sanctions against them. In this way, discretion to prosecute acts as a form of amnesty or “prior immunity” (from criminal prosecution and punishment) and is therefore contrary to international human rights law. It is important to emphasize that the Code of Criminal Procedure of September 2018, which deals in great detail with the discretion to prosecute, expressly mentions that the concept is a response to the increase in organized crime; it is explained in various parts of the text that its use is justified in relation to that crime in particular. 21 The Code of Criminal Procedure also clarifies that the application of the principle of the discretion to prosecute and, of course, the discontinuance of criminal proceedings are not justified in the case of serious human rights violations. 22 In this sense, its inclusion in a national reconciliation law and its application to serious violations committed during the armed conflict is unlawful. 34. Twenty-seven years after the end of the armed conflict, it is hard to see why impunity mechanisms such as those proposed in these bills could be considered legitimate or even necessary in political terms in El Salvador. Neither are they legal. The conviction and effective punishment of those responsible is an obligation of the State towards the victims and society that cannot be evaded through legislative decisions that are contrary to international human rights law, which would once again place the State in a position of unlawfulness. 35. While it is understandable that there is a need to encourage the provision of information in order to establish the truth about the violations that occurred or to find out the whereabouts of the victims and a need to adopt criminal prosecution strategies – since it is not feasible to prosecute each and every one of the perpetrators (direct perpetrators, instigators, participants) – these objectives cannot be achieved through impunity mechanisms that violate the right of victims to an effective remedy. 36. The Special Rapporteur also emphasizes that, while it is legitimate for the families of disappeared victims to wish to facilitate mechanisms that allow them to learn the truth about the violations suffered and to discover the whereabouts of their relatives, family members should not have to choose between truth and justice. The State has an obligation to satisfy both rights and cannot subsume one into the other. This dichotomy between two 16 17 18 19 20 21 22 8 General comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 18. Ibid. Inter-American Court of Human Rights, Barrios Altos v. Peru, Order of 7 September 2012, Monitoring Compliance with Judgment, para. 54; and Manuel Cepeda Vargas v. Colombia, Judgment of 26 May 2010 (Preliminary Objections, Merits, Reparations and Costs), Series C, No. 213, paras. 152 and 153. Barrios Altos v. Peru, para. 41. International Tribunal for the Former Yugoslavia, Judgment, Prosecutor v. Dražen Erdemović, Case IT-96-22-A, Appeals Chamber, 7 October 1997, p. 7; Inter-American Court of Human Rights, Vargas Areco v. Paraguay, Judgment of 26 September 2006, Series C, No. 155, para. 108; Barrios Altos v. Peru, para. 54; García Ibarra et al. v. Ecuador, Judgment of 17 November 2015 (Preliminary Objections, Merits, Reparations and Costs), Series C, No. 306, para. 167. www.cnj.gob.sv/images/documentos/pdf/publicaciones/codigo_procesal_penal_comentado_v1.pdf. Ibid. GE.20-09158