people, it will not be by trying to restrict the condition of beneficiaries of reparations
(through, for example, the imposition of a more heavier burden of proof on the
latter), it will not be trying to stop the jurisprudential expansion of the notion of
victim, that the international protection of human rights will be strengthened.
71.
On the contrary. If there is a growing number of beneficiaries of reparations, in
their own right, this occurs as a consequence of the gravity of the violations to human
rights in detriment of the people tortured, murdered, or missing, also making their
next of kin direct victims. We have to assume the legal consequences of said
violations, without turning to the subterfuge of demanding additional evidence of
suffering from the next of kin (as if this were possible...), of non-pecuniary damages.
If someone is not willing to face the great waves of the storm at high seas with
determination, it is better to not get on the boat.
72.
Maybe the personal reflections I am spreading upon the record in this
Concurring Opinion, brought about by the matter treated in the present Judgment of
Interpretation in the case of La Cantuta, can be taken into consideration by some new
composition of the Court, in the following years. For the meantime, some
jurisprudential setbacks in which the Tribunal has recently incurred, make it difficult
for me to extract the lessons submerged below the waves that have already passed
under the ship, and that gradually move further away in space and time. But I insist
on doing it, with the same tenacity with which I faced along with my colleagues those
stormy waves that the ship (of the Court) that would come towards us in a
threatening manner, but without regretting today, once and again, the same as the
experienced sailor (survivor of the Court) previously mentioned:
"I viewed the ocean green,
And looked far forth, yet little saw
Of what had else been seen."62
73.
In the task of international protection of human rights there is not, in my
opinion, space for pragmatism: the posture of those that act in it cannot be any other
than the principalistic and humanistic one. This requires, in my judgment, the
following for the correct interpretation and application of the applicable law: first, the
rejection of authoritarian or hermetic or dogmatic approaches of the latter; second,
trust in human reason, the recta ratio; third, the awareness of the needs for
protection, among which I can mention the realization of justice; fourth, attention to
the lessons of experience in matters of protection; and fifth, the combination of
reason and persuasion, in the necessary foundation for each decision in the legal
cases, and even in each Judgment of Interpretation.
Antônio Augusto Cançado Trindade
Judge
Pablo Saavedra Alessandri
Secretary
62
S.T. Coleridge, op. cit. supra n. (1), verses 443-445.