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I feel that we cannot adequately approach erga omnes obligations, compliance with which benefits ultimately the human person, - from a strictly
inter-State perspective or dimension, which would no longer reflect the
complexity of the contemporary international legal order. Obligations erga
omnes have a horizontal dimension, in the sense that they are owed to the
international community as a whole, to all subjects of international law, but
they also have also a vertical dimension, in the sense that they bind
everyone, - both the organs and agents of the State, of public power, as well
as the individuals themselves (including in inter-individual relations, where
grave breaches also do occur)"12.
28.
In accordance with its most enlightened jurisprudence and with a hermeneutics that
integrates (rather than segregates) the provisions of the American Convention, the InterAmerican Court, in the instant Judgment, has inter se related the violations of the American
Convention, of the rights to life, to humane treatment, and to personal liberty (Articles 4, 5
and 7), in addition to the rights of the child (Article 19) and freedom of movement (Article
22(1), in view of forced displacement, infra), added to the violation of the general duty of
protection set forth in Article 1(1) of the Convention (paras. 137, 145, 162, 184 and 189).
The Court has explicitly recognized that said violations are all linked to each other, and that
they cannot be separated from each other (para. 186).
29.
In brief, reflecting the major doctrinal contribution of its memorable Advisory Opinion
No. 18 on The Juridical Status and Rights of Undocumented Migrants (2003), the Court has
highlighted the “unbreakable link” between the erga omnes obligations of protection and the
jus cogens nature of the basic principle of equality and non-discrimination, which imposes
upon the States the special duty of taking such steps as may be necessary to ensure
protection of human rights with regard to “acts and practices of third parties who, under its
tolerance or acquiescence, create, maintain, or foster discriminatory situations” (para. 178).
With this, the Court has ensured that the silence of innocent victims will not go
unremembered and unnoticed.
IV.
The International Responsibility of the State and the Aggravating
Circumstances Revisited.
30.
In our days, massacres in the current brutalized world are beginning to be heard not
only by ad hoc international criminal courts (such as those for the former Yugoslavia and for
Rwanda), to establish the international criminal responsibility of individuals, but also by
international human rights courts (such as this Inter-American Court), to establish the
international responsibility of States. This new development is exemplified, at this Court, by
the recent cases of the Plan de Sánchez Massacre with regard to Guatemala (2004), of the
18 Merchants versus Colombia (2004), and of the Moiwana Community versus Suriname
(2005), in addition to the previous cases of Aloeboetoe et al. versus Suriname (1991-1993)
and of Barrios Altos with regard to Peru (2001), and, finally, the instant case of the
Mapiripán Massacre with regard to Colombia.
.
Oral remarks by A.A. Cançado Trindade at the Cracow meeting (August 2005), as yet unpublished (to be
published in the upcoming volume of the Annuaire of said Institut).
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