9
32.
This is, in my view, the original meaning of reparations, when public justice
overcame private justice, and public authority reacted against the violation of human
rights, thus providing satisfaction to the victims or their next of kin. The vicious circle
and the chain of revenge is broken and overcome: we evolve from Agamemnon’s
bloodied tunic to the final civic procession of Euminides, the last work of Aeschylus’
trilogy Oresteia.36 Public justice replaces private revenge.
33.
This explains the importance of the realization of justice. The juridical order
(both domestic and international) sets itself up to oppose violent acts that breach
human rights, to ensure that justice prevails and, thus, to provide satisfaction to the
direct and indirect victims. In his work on L'Ordinamento Giuridico, originally published
in 1918, the Italian philosopher of the Law, Santi Romano, argued that punishment is
not attached to specific juridical provisions, but rather is inherent to the juridical order
as a whole, operating as an “effective guarantee” of all subjective rights protected by
said order.37
34.
Without the realization of justice there are not even traces of human solidarity,
and Hecuba’s expressions of desperation (from the 5th century B.C.) and those of
Cornélie (from the 18th century) continue to resound in the void, together with the
desperate expressions of all those without justice and who have been victimized by
human brutality (in this dawn of the 21st century). Reparations cannot be deprived of
their great historical meaning, to overcome private revenge and attain public justice.
What we witness today, the reductionist approach that tends to assimilate them to
mere pecuniary compensations (indemnifications) for damage suffered, in my view
constitutes a regrettable distortion of their true meaning.38
35.
The Law, issuing from and moved by human awareness, provides reparatio
(from the Latin reparare, “to dispose once again”); it also intervenes to avoid repetition
of the wrong, in other words, to establish, as one of the non-pecuniary forms of
reparation of damage resulting from violations of human rights, the guarantee of nonrecidivism of the injurious acts. Said guarantee of non-recidivism already has a definite
place among the range of forms of reparation for human rights violations.
36.
Its importance is undeniable: it is not by chance that, among the operative
paragraphs of the instant Judgment of the Inter-American Court on forms of reparation
(ns. 4-13), the first are those pertaining to investigation and punishment of those
responsible (n. 4)39 and the guarantee of non-recidivism of the injurious facts (n. 5),40
before pecuniary reparations (operative paragraphs ns. 7-13).41 Justice and guarantees
36
.
On the direction of this evolution see, e.g., C. Rocco, Tragedia e Ilustración - El Pensamiento Político
Ateniense y los Dilemas de la Modernidad, Santiago de Chile, Edit. Andrés Bello, 1996, pp. 177-215.
37
.
Santi Romano, L'ordre juridique (transl. 2d ed., repr.), Paris, Dalloz, 2002, p. 16.
38
.
About to become, in contemporary forensic practice in various countries, a regrettable and
reprehensible “industry of reparations.”
39
.
And cf. paras. 110-121 of the instant Judgment.
40
.
And cf. paras. 122-138 of the instant Judgment; and, as regards adjustment of domestic legal
provisions to those of the American Convention, also cf. paras. 139-145 of the instant Judgment.
41
.
This order of priorities is in accordance with the statement by the mother of Walter David
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