CONCURRING OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ
IN THE JUDGMENT OF THE INTER-AMERICAN COURT
IN THE CASE OF THE ROCHELA MASSACRE V. COLOMBIA
OF MAY 11, 2007
1. Within its jurisdiction over violations of human rights, the Inter-American Court
serves from a juridical perspective that derives from the instruments which confer
jurisdiction upon it as well as those international norms which come together to
determine the reach of certain facts and norms, among other elements. In this way,
the Court lies within a context of regulation and culture which provides contemporary
and historical meaning to its reflections and findings.
2. Moreover, the Court incorporates into its reflections elements which govern other
branches of the juridical order, conscious of the fact that the Law which directly
applies, that is, the International Law of Human Rights of the Inter-American Court
forms part of the complete juridical order.
3. The use of juridical concepts from other branches or disciplines in the rulings of
this Tribunal is both evident and frequent. To mention only one example, recall the
elaboration of Inter-American jurisprudence on the subject of the reach of the right
to use and enjoy one’s own goods –enshrined in Article 21 of the American
Convention under the rubric of the right to private property- in light of the juridical
system of the ancient American peoples. The Court has not refused these concepts,
nor has it denied the possibility –or rather, the necessity- of employing notions and
experiences rooted in other juridical spaces in its judgments.
4. In the Judgment that accompanies this opinion, the Court has found –invoking
precedent from the European Court: Makaratzis v. Greece, of 2004, and Acar and
Others v. Turkey, of 2005- that the violation of the right to life exists when the
transgressing agents undertake all the acts which should have produced the
deprivation of life, even though this deprivation is not consummated due to causes
beyond their control, such that they were not even conscious of the fact that any
individuals had survived the massacre. This situation highlights the characteristics of
the illicit conduct and its design to produce a certain injurious end, the use of force,
and the intent of the agents. For all these reasons, the facts demonstrate a direct
and deliberate attack on the right to life. Consequently, it is possible and appropriate
to categorize them within this category of violations.
5. The Inter-American Court has followed this line of reflection in the analysis of the
events of The Rochela, in the sense that it maintains that “The manner in which the
massacre was executed through an attack with firearms of the indicated magnitude,
leaving the victims without any possibility of escape, constituted a threat to the life
of all the 15 members of the Judicial Commission. The fact that three of them were
only injured and not killed is merely fortuitous.” The mere threat, as severe as it may
have been, by itself would be insufficient to constitute a violation of the right
protected by Article 4. What is required is an attack upon the sphere protected,
which demonstrates sufficient gravity to infringe this right.
6. This criterion of the Tribunal implies a step forward in the protection of human
rights, consistently within the framework of the Pact of San José –without excess or
defect; and far from capricious judgment-, whose interpretation sustains the