Abstract

MALARINO, Ezequiel. VIOLATE HUMAN RIGHTS TO PROTECT THEM. AN ANALYSIS OF THE JURISPRUDENCE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS SINCE THE TURN OF THE CENTURY. Rev. Fac. [online]. 2018, vol.9, n.2, pp.1-12. ISSN 1850-9371.

This article analyses the main features of the Inter-American Court of Human Rights' case law in the 21st century. Its central purpose is to show that the IACHR has endorsed a punitivist conception of human rights and to highlight some flaws in its legal argumentation. Firstly, it shows that by means of victims-oriented interpretations, lacking sup-port in the text of the American Convention, the Court has created new victims' rights, which neutralise fundamental, expressly granted rights of the accused. Secondly, the article deals with two ways through which the IACHR has seek to impose its punitivist jurisprudence on national authorities. On the one hand, it criticizes the extremely broad interpre-tation regarding what the IACHR can order as a reparation for a human rights violation. On the other hand, it casts doubts on the foundations of the doctrine of conventionality control. Lastly, the article points out some inconsistencies in the IACHR's reasoning about the duty to prosecute and punish serious human rights violations. It maintains that a duty to prosecute and punish can be derived from the duty to ensure (article 1.1 ACHR) only through the idea of crime prevention. But, if this is so, it is not possible to derive from such a duty neither an absolute prohibition of amnesty laws for serious human rights violations nor a victim's right to prosecute and punish.

Keywords : Serious human rights violations - Duty to prosecute and punish - Victim's rights to prosecute and punish - Inter-American Court of Human Rights - Punitivism..

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