36 | P age b indicate that torture is not subject to amnesty. International criminal courts jurisprudences revealed that granting amnesty by enacting law for person who commits torture is facilitating impunity and incompatible with the non-derogable nature of torture. In the Furundzija case, ICTY held that It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a state say, taking national measures authorizing or condoning torture or absolving its perpetrators through an amnesty law. If such a situation whereto arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above (null and void) and in addition would not be accorded international legal recognition. 168 H uman rights bodies jurisprudences also interpret state obligations to investigate and prosecute under their respective implementing clauses as prohibiting amnesty. The HRC in its GC No stated that Amnesties are generally incompatible with the duty of states to investigate such acts to guarantee freedom from such acts within their jurisdiction and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as maybe possible. 169 In the case Rodriguez v. Uruguay 170 , the HRC reiterated this view stating that failure to investigate allegation that the applicant had been tortured by the secret police of the former military regime and amnesties for gross violations of human rights and legislation, such as Law No. 15,848, Ley de Caducidad de la pretension punitive del Estado, are incompatible with the obligations of the Uruguay under the ICCPR. In 2003 HRC expressed its concerns about E Salvador‟s 1993 General Amnesty Act and the application of that Act to serious human rights violations, including those considered and established by the United Nations Truth Commission for E Salvador. The HRC considered that the act infringed the right to an effective remedy, 168 Furundzija, note 19, Para 155 169 HRC, GC No. 20, Para 15. 170 Rodriguez, note 26, Paras 12.3 and 12.4; The Committee expressed its concern that, in adopting this law, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations (Emphasis added.
