37.
It is highly significant that, in establishing the international responsibility of
the State in the instant case of the Gómez Paquiyauri brothers, the Inter-American
Court, when it found that Articles 5 and 4 of the American Convention were
breached, explicitly recognized that an international juridical system of absolute
prohibition of all forms of torture and extra-legal executions has been constituted in
our day, and it is now part of the sphere of international jus cogens (paras. 111112 and 128, respectively). Therefore, there is an aggravated international
responsibility36 (for the wrongful acts committed and the persons murdered, two
children), with direct consequences regarding reparations.
38.
Said responsibility entails, for the respondent State, among others, the
obligation to render justice in its domestic law, investigating the facts and
punishing those responsible.37 As stated in the instant Judgment of the InterAmerican Court, the “extreme gravity” of the instant case was underlined, in the
Peruvian domestic legal system, by the Third Criminal Chamber of El Callao itself
(para. 142). In the international legal system, the special gravity of certain
violations of the rights of the human person is set forth in some international
instruments.
39.
Let us recall, for example, that the four Geneva Conventions of 1949 specify
the “grave breaches”,38 and the two Additional Protocols of 1977 to those
Conventions enshrine “fundamental guarantees”, 39 which contain the absolute
prohibition, inter alia, of murder and any form of torture (both physical and
mental).40 The search for a hierarchy at both the compulsory level (jus cogens) and
the operative level (erga omnes obligations of protection), as well as the definition
of internationally wrongful acts (grave violations of human rights) has, precisely,
led to the current establishment of the aggravated international responsibility of the
State.
40.
In the instant Judgment, in the chapter on the international responsibility of
the State, the Inter-American Court brings to mind that said responsibility “is
immediately generated by the internationally wrongful act” ascribed to the State,
and any actions under domestic venue do not inhibit it from continuing to hear the
case, in a proceeding that has begun before it, since its role is to ensure due
protection of the rights enshrined in the American Convention and the reparations
for the violations committed (paras. 75-76). And it added that, in the instant case,
"the responsibility of the State is aggravated by the existence in Peru, at the
time of the facts, of a systematic practice of human rights violations, including extralegal executions, of persons suspected of belonging to armed groups, carried out by
State agents under orders by military and police commanders. Said grave violations
breach international jus cogens. Likewise, in establishing aggravated responsibility, it
is necessary to take into account that the victims in this case were children” (para.
76).
41.
The Court also expressed its concern regarding the existence of a “situation
of grave impunity” in the instant case (para. 148), and it added the statement –
which today is part of its jurisprudence constante – that “in accordance with the
obligations undertaken by the States under the convention, no domestic legal
36
.
See, in this regard, my Separate Opinion in the Case of Myrna Mack Chang versus
Guatemala(Judgment of 25.11.2003), paras. 41-55.
37
.
25.
38
.
See my Separate Opinion in the Plan de Sánchez Massacre case (Judgment of 29.04.2004), para.
39
.
Protocol I, Article 75; Protocol II, Articles 4-6.
40
.
Protocol I, Article 75(2)(a); Protocol II, Articles 4(2)(a).
Article 50/51/130/147.
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