SEPARATE CONCURRING OPINION OF AD-HOC JUDGE
GUSTAVO ZAFRA ROLDAN
I fully concur with the Judgment of the Inter-American Court in the
“Mapiripán Massacre” case.
I add the following remarks:
1) In the cases in which the State of Colombia and the victims have
reached a settlement under Administrative Law venue, these
settlements, based on the principle of good faith, must be taken into
account.
a) If the settlement has been partial or total, determination of the
amount to be paid for reparations ordered by the Inter-American Court
must deduct what the State effectively recognized and paid in the
administrative law proceedings.
b) I am aware that the criteria used by the Inter-American Court to
establish comprehensive redress are not exactly the same as those
followed by the State Council [Consejo de Estado]. However,
reparations must respect the principle of good faith, as well as the
criterion of the Inter-American Court -which coincides with that of the
State Council- that reparations must not constitute unjustified
enrichment.
2) On the other hand, the strictly humanitarian aid provided by the State
of
Colombia,
consisting
of
groceries,
household
utensils,
transportation, and subsidies, cannot be considered compensation for
the unlawful damage caused by the State to the victims.
a) The State’s obligation to provide humanitarian aid derives from the
principles of solidarity, International Humanitarian Law, and the duties
of the social State based on the rule of law.
b) On the other hand, the obligation to provide reparation for the damage
caused by violation of the Rights to Life and to Humane Treatment,
and other rights that were abridged, derives from non-compliance by
the State with its role as guarantor, which constitutes the unlawful
damage.
c) If the former and the latter are confused, we would find ourselves in
the extreme situation of the State making demands on the victims for
not exercising its own role as guarantor.
d) These humanitarian aids, all the more so, must not be confused with
the obligation to provide reparation for the internationally unlawful act
of the State, for which this Court has found it to be responsible, and
which is the basis for the awards made in fairness in favor of the
victims.
3) With regard to the figure of forty-nine violations of the Right to Life
which has been accepted by the parties, and given the impossibility of
submitting new evidence other than the last identification of twenty
three made by the Office of the Government Attorney [Fiscalía General
de la Nación], clearly this poses a very complex problem to solve for
execution of the Judgment.