CONCURRING OPINION OF
JUDGE SERGIO GARCÍA RAMÍREZ WITH THE JUDGMENT
OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
IN THE BARRIOS ALTOS CASE. MARCH 14, 2001.
1.
I agree with the judgment on merits unanimously adopted by the members of
the Inter-American Court of Human Rights in the Barrios Altos case. I add this
concurring opinion in which I offer some considerations that this judgment calls to
mind on the following points: a) the characteristics of acquiescence and the legal
classification of the facts examined in the instant case; and b) the opposition
between the laws of self-amnesty referred to in the judgment and the general
obligations of the State under the American Convention on Human Rights (Articles
1(1) and 2), and also the legal consequences of this opposition.
2.
The State acquiesced to the claims of the plaintiff, who in this case is the
Inter-American Commission on Human Rights. This acquiescence occurred because
the State recognized its international responsibility in the terms of the
communication of February 15, 2001. Therefore, the grounds for the case originally
filed were eliminated. In other words, the principal dispute described in the
Commission’s application ceased to exist, although this does not preclude the
possibility of filing a contentious action for reparations. Consequently, the Court had
to examine the characteristics and scope of the jurisdictional actions in this case,
culminating in a judgment on merits.
3.
Acquiescence, which is a procedural element established in the InterAmerican Court’s Rules of Procedure, is a well-know means of settling a lawsuit. It
implies a unilateral act of willingness, of a dispositive nature, whereby the defendant
party acquiesces to the claims of the petitioner and assumes the obligations inherent
in this acquiescence. Now, this act only refers to what the defendant is able to
accept, because it is within his natural sphere of decision and acquiescence: the facts
invoked in the application, from which defendant’s responsibility arises. In this case,
the facts violate a binding instrument of an international nature, the American
Convention on Human Rights; this engages a responsibility that is also international,
and it is the Court’s duty to evaluate and declare this. These facts give rise to a
particular legal classification and specific consequences of the same nature.
4.
In the terms of the provisions applicable to the international prosecution of
human rights violations, acquiescence does not necessarily entail the conclusion of
the proceeding and the closure of the case, nor does it, in itself, determine the
content of the Court’s final decision. Indeed, there are cases when the Court may
order that the proceeding on the principal issue – the violation of the rights - should
continue, even though the defendant acquiesced to the claims of the petitioner, when
this is motivated by “its responsibility to protect human rights” (Article 54 of the
current Rules of Procedure of the Inter-American Court of Human Rights, approved
on September 16, 1996). Therefore, the Court may decide to continue the
proceeding, if this is advisable from the point of view of the international judicial
protection of human rights. In this respect, it is the Court, alone and exclusively,
that must evaluate this.
5.
This “responsibility” to protect human rights may be exercised in various
ways. The Court might find the version of the facts provided by the petitioner and
accepted by the defendant unacceptable, since the Court is not bound – as national