SEPARATE CONCURRING OPINION OF
JUDGE SERGIO GARCÍA RAMÍREZ ON THE JUDGMENT ON
MERITS OF THE BÁMACA VELÁSQUEZ CASE
1.
The Judgment pronounced by the Inter-American Court of Human Rights in
the Bámaca Velásquez case, on November 25, 2000, examines various alleged
violations of rights embodied in the American Convention on Human Rights, the Pact
of San José. It constitutes a valuable jurisdictional reflection on various concepts that
are relevant for international human rights law and the development of the
jurisprudence of the Court. It repeats and expands positions adopted previously and
encourages the examination and definition of some new issues in the Court's own
experience. I believe it pertinent to associate this concurring opinion with the
considerations and decisions of this Judgment.
I. VICTIM OF VIOLATION
2.
When examining the violation of Article 5 of the Convention (Right to humane
treatment), the Judgment looks at two issues that I will examine in this opinion. One
of them relates to the burden of proof in the alleged forced disappearance of
persons, an issue to which I will return infra (sub V, B). The other concerns the very
concept of victim of violation, a matter of fundamental importance in international
human rights law, both because of its substantive implications - to identify the
passive subject of the injury, holder of the affected rights and others generated by
the respective conduct - and because of its procedural consequences - to define the
competency and the corresponding capacity to act at different moments of the
proceeding.
3.
The development of the concept of victim is well know, starting from the
nuclear notion centered on what would be called the direct victim, until it reaches,
when applicable, the expanded notions that are expressed in the concepts of indirect
victim and potential victim, issues that have been explored and disputed at length 1.
This evolution clearly reveals the guiding momentum of international human rights
law, which strives to take the real protection of human rights increasingly further - in
a trend that I believe to be pertinent and encouraging. The principle that favors the
individual, which is summarized in the expanded version of the pro homine rule - a
source of progressive interpretation and integration - has one of its most notable
expressions here.
4.
Like the European Court, the Inter-American Court has dealt with this matter
(through an evolving jurisprudence that works with the figures of direct and indirect
victim and beneficiaries of the victim2), through decisions in which it initiated or
1
cf. Rogge, Kersten, “The ´victim´ requirement in article 25 of the European Convention on
Human Rights”, in Various, Protecting human rights: the European Dimension/Protection des droits de
l´homme: la dimension européenne, ed. Franz Matscher-Herbert Petzhold, Carl Heymanns Verlag K G.
Köln. Berlin. Bonn. München, 1988, pp. 539 and ff.; and Cancado Trindade, A. A., Co-existence and coordination of mechanisms of international protection of human rights (At global and regional levels).
Academy of International Law, Offprint from the Collected Courses, vol. 202 (1987-II), pp. 243 and ff.
2
cf. Pasqualucci, Jo M., “Victim reparations in the Inter-American Human Rights System: a critical
assessment of current practice and procedure”, in Michigan Journal of International Law, vol. 18, no. 1,
fall 1996, esp. pp. 16 and ff.; also, cf., in their respective considerations, Villagrán Morales et al. case (the
“Street Children” case). Judgment of November 19, 1999. Series C No. 63, paras. 173-177; and Blake
case. Judgment of January 24, 1998. Series C No. 36, paras. 97 and 116.