11
bodies, was indelibly recorded in the memory of their beloved next of kin, and will
remain there for the rest of their lives. There is no forgetting. As Cicero argued, in
the year 45, in his treatise On Supreme Good and Evil (better known as De Finibus),
"(...) is it in our power to choose our memories? Themistocles, in any case,
when Simonides or any other promised to teach him the art of memory, answered: ‘I
prefer oblivion, as I remember even what I do not want to, and I cannot forget what I
want to forget.’ (...) It seems characteristic of an overly authoritarian philosopher to
forbid that we remember.”34
In the midst of the tragic vulnerability of the human condition, the grief of
remembering brutality and impunity is often mitigated by the lenitive of justice,
though delayed, the strict observance of which –as Cicero added in his daytranslates into the welfare of human society.35
36.
The next of kin of the murdered brothers, Rafael and Emilio Gómez
Paquiyauri, today finally found human justice, by means of the Judgment that the
Inter-American Court has just rendered. Enforcement of the international
responsibility of the respondent State was asserted and established at the end of an
adjudicatory proceeding activated by individuals as the subjects of International
Human Rights Law, endowed with legal/procedural capacity. Facts such as those in
the instant case have, therefore, generated a reaction in human conscience, which
has led to concrete results. And the degree of evolution that we have attained today
in the current sphere of protection reveals that, despite the tragic inevitability of
human suffering, human conscience has driven the Law (as its ultimate material
source) toward the identification and application of means to alleviate that suffering,
inherent to the tragically vulnerable human condition.
V.
Compulsory Law (Jus Cogens) and the Establishment of the
Aggravated International Responsibility of the State
37.
It is highly significant that, in establishing the international responsibility of
the State in the instant case of the Gómez Paquiyauri brothers, the Inter-American
Court, when it found that Articles 5 and 4 of the American Convention were
breached, explicitly recognized that an international juridical system of absolute
prohibition of all forms of torture and extra-legal executions has been constituted in
our day, and it is now part of the sphere of international jus cogens (paras. 111-112
and 128, respectively). Therefore, there is an aggravated international
responsibility36 (for the wrongful acts committed and the persons murdered, two
children), with direct consequences regarding reparations.
38.
Said responsibility entails, for the respondent State, among others, the
obligation to render justice in its domestic law, investigating the facts and punishing
those responsible.37 As stated in the instant Judgment of the Inter-American Court,
the “extreme gravity” of the instant case was underlined, in the Peruvian domestic
legal system, by the Third Criminal Chamber of El Callao itself (para. 142). In the
34
.
Book II, lines 101-108.
35
.
See De Finibus, book II, lines 93-95 and 118-120.
.
See, in this regard, my Separate Opinion in the Case of Myrna Mack Chang versus
Guatemala(Judgment of 25.11.2003), paras. 41-55.
36
37
.
See my Separate Opinion in the Plan de Sánchez Massacre case (Judgment of 29.04.2004),
para. 25.
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