-1SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have voted in favor of the judgment that the Inter-American Court of
Human Rights has just adopted in the Pueblo Bello Massacre v. Colombia. Given the
importance of the case and the complexity of the issue dealt with in this judgment, I
feel obliged to record my observations, to explain my position on its many aspects.
The central element relates to the right of access (lato sensu) to justice and
guarantees of due process of law, necessarily considered together. Before continuing
to the substantive part of my considerations, I wish to refer briefly to the broad
scope of the general obligation of guarantee (Article 1(1) of the American
Convention) and the obligations erga omnes to protect the rights embodied therein.
I.
Prolegomenon: The Broad Scope of the General Obligation of
Guarantee
(Article 1(1) of the American Convention)
and the Obligations Erga Omnes of Protection
2.
The facts of this case, and even some gaps in the body of evidence, have
further emphasized the relevance of the general obligation of protection embodied in
Article 1(1) of the American Convention, particularly in the situation of chronic
violence which forms the backdrop to the case. In this judgment in the Pueblo Bello
Massacre case, the Court has underscored the broad scope of the general obligation
of guarantee of Article 1(1) of the American Convention, so that "the act or omission
of any public authority constitutes a fact attributable to the State, which involves its
international responsibility in the terms established in the Convention and according
to general international law" (para. 111).1
3.
One of the expert opinions given before the Court in this case indicated that:
"With the increase in drug-trafficking, the irregular war found an inexhaustible source of
logistic resources, which introduced another model: outright paramilitarism, financed by
the drug-traffickers, and assessed by (...) intelligence forces (...)" (para. 65(k)).
The generalization of the conflict has resulted in the forced displacement of the
population (paras. 65(l) and 66(c)), and the Court, in this judgment, has accepted as
a proven fact that "between 1988 and 1990 the paramilitary groups carried out more
than 20 massacres of peasants and trade unionists" (para. 95(27)). Throughout the
judgment, the Court has emphasized the State's obligation of due diligence, even to
have ensured that this situation (which was extremely complex and an authentic
tragedy severely affecting Colombia – a country with a very respectable juridical
tradition2) should never have happened.
1
.
Cf., on this specific point, recently, A.A. Cançado Trindade, "La Convention Américaine relative aux
Droits de l'Homme et le droit international général", in Droit international, droits de l'homme et juridictions
internationales (eds. G. Cohen-Jonathan and J.-F. Flauss), Bruxelles, Bruylant, 2004, pp. 59-71.
2
.
This juridical tradition is such that, amidst all the conflicts that affect the country, it continues alive in
the research carried out by the new generations of Colombian jurists, who are studying extremely relevant
issues such as transitional justice (including the collective memory, reparation, justice and democracy); cf.,
e.g., the essays of several authors in this regard, in: 7 Revista Estudios Socio-Jurídicos - Universidad del
Rosario/Bogotá (August 2005) - special edition, pp. 21-40 and 200-543.