12
international legal system, the special gravity of certain violations of the rights of the
human person is set forth in some international instruments.
39.
Let us recall, for example, that the four Geneva Conventions of 1949 specify
the “grave breaches”,38 and the two Additional Protocols of 1977 to those
Conventions enshrine “fundamental guarantees”,39 which contain the absolute
prohibition, inter alia, of murder and any form of torture (both physical and
mental).40 The search for a hierarchy at both the compulsory level (jus cogens) and
the operative level (erga omnes obligations of protection), as well as the definition of
internationally wrongful acts (grave violations of human rights) has, precisely, led to
the current establishment of the aggravated international responsibility of the State.
40.
In the instant Judgment, in the chapter on the international responsibility of
the State, the Inter-American Court brings to mind that said responsibility “is
immediately generated by the internationally wrongful act” ascribed to the State, and
any actions under domestic venue do not inhibit it from continuing to hear the case,
in a proceeding that has begun before it, since its role is to ensure due protection of
the rights enshrined in the American Convention and the reparations for the
violations committed (paras. 75-76). And it added that, in the instant case,
"the responsibility of the State is aggravated by the existence in Peru, at the
time of the facts, of a systematic practice of human rights violations, including extralegal executions, of persons suspected of belonging to armed groups, carried out by
State agents under orders by military and police commanders. Said grave violations
breach international jus cogens. Likewise, in establishing aggravated responsibility, it is
necessary to take into account that the victims in this case were children” (para. 76).
41.
The Court also expressed its concern regarding the existence of a “situation of
grave impunity” in the instant case (para. 148), and it added the statement –which
today is part of its jurisprudence constante – that “in accordance with the obligations
undertaken by the States under the convention, no domestic legal provision or
precept, including that of extinguishment, can obstruct compliance with decisions of
the Court regarding investigation and punishment of those responsible for human
rights violations” (para.151).
42.
In other cases before this Court, in addition to highlighting the development
of a “true international system to oppose grave human rights violations,” to which
the peremptory provisions of international law (the jus cogens) and the erga omnes
obligations of protection have contributed decisively,41 I have argued that
“one cannot deny the close link between reparations and combating impunity,
as well as ensuring non-recidivism of the injurious acts, always and necessarily from the
perspective of the victims. True reparatio, linked to realization of justice, requires
overcoming obstructions of the duty to investigate and to punish those responsible, and
putting an end to impunity.”42
38
Article 50/51/130/147.
39
Protocol I, Article 75; Protocol II, Articles 4-6.
.
.
40
.
Protocol I, Article 75(2)(a); Protocol II, Articles 4(2)(a).
.
I-A Ct of HR, Case of Blake versus Guatemala, Judgment on Reparations of 22.01.1999,
Separate Opinion of Judge A.A. Cançado Trindade, para. 39.
41
42
.
I-A Ct of HR, Case of Myrna Mack Chang versus Guatemala, Judgment of 25.11.2003, Separate
Opinion of Judge A.A. Cançado Trindade, para. 46.
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