Dissenting Opinion in the same Case of El Amparo (Order of April 16, 1997 on
Interpretation of the Judgment), I also asserted the objective or “strict” liability of
the State for failure to comply with its legislative obligations under the American
Convention in order to harmonize its domestic law with the obligations undertaken
under said treaty (paras. 12-14 and 21-26).
25.
Moreover, in my Dissenting Opinion in the Case of Caballero-Delgado and
Santana v. Colombia (Judgment on Reparations of January 29, 1997), regarding the
interrelation between the general duties to respect and to ensure respect for the
protected rights and to harmonize the domestic legal order with the international
norms of protection of the American Convention (para. 6), I stated that:
“In fact, those two general obligations, -which are added to the other specific
conventional obligations concerning each of the protected rights,- are incumbent upon
the States Parties by the application of International Law itself, of a general principle
(pacta sunt servanda) whose source is metajuridical, in seeking to be based, beyond the
individual consent of each State, on considerations concerning the binding character of
the duties derived from international treaties. In the present domain of protection, the
States Parties have the general obligation, arising from a general principle of
International Law, to take all measures of domestic law to guarantee the effective
protection (effet utile) of the recognized rights.
The two general obligations enshrined in the American Convention -that of
respecting and guaranteeing the protected rights (Article 1(1)) and that of harmonizing
domestic law with the international norms of protection (Article 2)- appear to me to be
ineluctably intertwined. (…) As those conventional norms bind the States Parties -and
not only their governments,- in addition to the Executive, the Legislative and the Judicial
Powers are also under the obligation to take the necessary measures to give
effectiveness to the American Convention at domestic law level. Non-compliance with
the conventional obligations, as known, engages the international responsibility of the
State, for acts or omissions, either of the Executive Power, or of Legislative, or of the
Judiciary. In sum, the international obligations of protection, which in their wide scope
are incumbent upon all the powers of the State (…)” (paras. 8 and 10).
III.
The Conceptualization of Crimes against Humanity at the
Confluence
of
International
Human
Rights
Law
and
International Criminal Law
26.
In my recent Separate Opinion four days ago (always under relentless time
pressure, further intensified by the current fast working “methods” of the InterAmerican Court, which I do not share), in the Judgment in the Case of Goiburú et al.
v. Paraguay, I placed the conceptualization of crimes against humanity at the
confluence of International Human Rights Law and International Criminal Law. In the
aforesaid Separate Opinion, I pointed out that crimes against humanity
"are perpetrated by individuals who, however, follow State policies, with the institutions,
human and other resources of the State at their disposal, and who are favored by the
impotence or tolerance or connivance or indifference of the social body that does
nothing to stop them. Either explicitly or implicitly, the State policy is present in crimes
21
against humanity. They are not limited to mere isolated acts by deranged individuals.
They are carefully calculated, planned and executed.
21
.
Cf., in this regard, e.g., M.Ch. Bassiouni, Crimes against Humanity in International Criminal Law,
2nd. rev. ed., The Hague, Kluwer, 1999, pp. 252, 254-257. This is the concept underlying the United
Nations Convention against Torture, which criminalizes, under International Law, the acts of public
officials; ibid., p. 263 and cf. p. 277.