SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have voted in favor of the adoption of this judgment in the Case of the
Ituango Massacres by the Inter-American Court of Human Rights. Given the
particular gravity of the facts of the case, which once again reveal to the Court the
genuine human tragedy endured by Colombia in recent years, I am obliged to record
my reflections on the issues dealt with by the Court in this judgment as grounds for
my respective position. To this end, in this separate opinion, I will refer to the
following points, not necessarily circumscribed to this case, although related to it,
and also as general reflections on the future work of the Court and as a contribution
to the enhancement of contemporary international legal doctrine: (a) prior
considerations; (b) the different manifestations of human cruelty in the execution of
State policies; (c) the insensitivity of the State to the consequences of its own
criminal practices; (d) the total defenselessness of the individual in the face of the
State’s criminal practices; (e) further reflections on the planning and execution of
massacres as State crimes; (f) the right of access to justice lato sensu in the
indivisibility between Articles 25 and 8 of the American Convention; and g) the
reaction of the juridical conscience: the evolution of the notion of victim.
I.
Prior considerations
2.
In this judgment in the Case of the Ituango Massacres (resulting from the
armed incursions in La Granja and El Aro), the Court defined the scope of the
defendant State’s partial acknowledgement of international responsibility for specific
acts, noting that it did not encompass the claims of the complainants as regards
reparations and costs (para. 73). One of the expert witnesses who gave evidence
before the Court stated that the said massacres had been perpetrated with “extreme
brutality” (including mutilation, torture and extrajudicial executions) by “paramilitary
groups acting in conjunction with the Colombian armed forces, or at least with their
acquiescence or tolerance” (para. 110(a)(1)). The Court found that the brutality and
the internal forced displacement in Colombia had been proved (paras. 125(1-113).
3.
In the proceedings before the Court in this case, when affirming “the State’s
responsibility for the acts of the paramilitary groups,” the victims’ representatives
stated, in the public hearing of September 23, 2005, that:
"In Colombia, the paramilitary movement is a State strategy to combat the guerrilla
groups; this strategy has consisted in promoting the actions of armed civilian groups
which attack the civilian population that really or allegedly supports the insurgents, by
means of selective assassination, forced disappearance, massacres and indiscriminate
acts of violence against this civilian population.” 1
4.
According to the representatives, “the Colombian State’s responsibility”
concerning the events of this case was constituted in the zone of Ituango, which was
of strategic importance because the FARC guerrilla operated there:
1
.
Inter-American Court of Human Rights, Transcripción de la Audiencia Pública del 23.09.2005 en
el caso de las Masacres de Ituango relativo a Colombia, p. 155 (statement by C. Rodríguez Mejía, internal
document).