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Bosico versus the Dominican Republic (Judgment of 08.09.2005), in which the Court
has acted in a similar manner in this regard.
5.
To deny the broad scope of the duty of protection under Articles 1(1) and 2 of
the Convention – or to minimize them by means of a dispersed and disintegrated
interpretation of said duties- would amount to depriving the Convention of its effet
utile. The Inter-American Court cannot shift away from its jurisprudence constante in
this regard, and it has the duty to watch over the conservation of the high standards
of protection built over the years through its jurisprudence.
Its noteworthy
construction
of
jurisprudence
1
on this matter cannot be curtailed, and I would firmly oppose any attempt to do so.
Said construction expresses Law in evolution, which admits no regression.
Furthermore, the gravity of the facts in the instant case of the Mapiripán Massacre,
with regard to Colombia, very clearly shows the importance of maintaining the
appropriate hermeneutics of Article 1(1) of the American Convention.
6.
Before referring to my reflections on the facts in the cas d'espèce, I merely
wish to add here that, just as the existence of a law that is manifestly incompatible
with the American Convention entails per se a violation of said Convention (under
the general duty of its Article 2, to harmonize domestic legal provisions with the
Convention), the lack of positive protection measures –and even preventive onesby the State, in a situation that reveals a consistent pattern of violent and flagrant
and grave human rights violations, entails per se a violation of the American
Convention (under the general duty to guarantee rights, set forth in Article 1(1), that
is, to respect and insure respect for the rights protected).
7.
In this regard, the general duties of Articles 1(1) and 2 of the American
Convention have an autonomous meaning of their own, and establishment of their
non-fulfillment is not subject to establishing specific individual violations of one or
another right enshrined in the American Convention. With regard to this matter, the
most enlightened jurisprudence of this Court (see above) has in fact acknowledged
the broad and autonomous meaning of the general duties set forth in Articles 1(1)
and 2 of the American Convention, whose abridgment, rather than being subsumed
in individual violations of specific rights under the convention, instead is addedl to
said violations.
II.
Finding the Respondent State Responsible in the Circumstances of the
Instant Case.
8.
In the instant Judgment in the case of the Mapiripán Massacre, the Court has
noted that the respondent State acknowledged its international responsibility (on
07.03.2005) "for violation of Articles 4(1), 5(1) and (2), and 7(1) and (2) of the
American Convention on Human Rights, in connection with the facts that took place
in Mapiripán in July 1997” and it has granted said acknowledgment “full effect”
(para. 125). Said facts consisted of acts committed by a group of paramilitary
against the victims (para. 117), and the State, after acknowledging them,
.
Which I have recently attempted to summarize; see, e.g. , A.A. Cançado Trindade, "The CaseLaw of the Inter-American Court of Human Rights: An Overview", in Studi di Diritto Internazionale in
Onore di G. Arangio-Ruiz, vol. III, Napoli, Edit. Scientifica, 2004, pp. 1873-1898.
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