2
transition from civil procedural law into the International Law of Human Rights, they
moved out of the strictly precautionary realm and into the sphere of protection.
5.
The jurisprudence of the Inter-American Court of Human Rights has made a
decisive contribution to this subject, perhaps more than any other international
tribunal to date. Its jurisprudence on the subject traces its roots to a convention
and, for breadth of scope, is unparalleled1 in contemporary international
jurisprudence. In recent years, and right up to the present, it has tapped all the
potential for protection –through prevention- that can be drawn from the language of
Article 63(2) of the American Convention.
6.
In my Concurring Opinion in the Matter of the Peace Community of San José
de Apartadó (Order of June 18, 2002), I underscored the fact that at the
corresponding public hearing held by this Court on June 13, 2002, the Columbian
State "correctly recognized its obligation to act also vis-à-vis private third parties"
(para. 14), - whether those third parties be State security forces, paramilitary,
guerrillas, unidentified persons, or any other simple private citizen. This is a genuine
obligation erga omnes to protect all members of the threatened and harassed
community who, although not named, are no less identifiable. In the instant case,
the Court held that the members of the Kankuamo indigenous people meet this
requirement, i.e., they are identifiable.
7.
As I wrote in that Opinion (on the aforementioned Order of June 18, 2002) –
and as I do so again in relation to this case- in the final analysis what we have here
is the State’s obligation erga omnes to protect all persons subject to its jurisdiction,
an obligation that becomes all the more important in the midst of an armed conflict
such as the one in Colombia and that
"(...) requires clearly the recognition of the effects of the American Convention
vis-à-vis third parties (the Drittwirkung), without which the conventional obligations of
protection would be reduced to little more than a dead letter.
The reasoning as from the thesis of the objective responsibility of the State is,
in my view, ineluctable, particularly in a case of provisional measures of protection as
the present. The intention here is to avoid irreparable harm to the members of a
community and to the persons who render services to this latter, in a situation of
extreme gravity and urgency, which encompasses actions, armed and otherwise, of
paramilitary and clandestine groups, along with the actions of organs and agents of the
public forces. (paras. 14-15).
8.
Later, in my Concurring Opinion in the Matter of The Communities of
Jiguamiandó and Curbaradó (Order of March 6, 2003), which also involved Colombia
and had both individual and collective dimensions, I took the liberty of once again
insisting that the response to acts of violence committed by armed irregulars of any
kind must be recognition of the third-party effects of the American Convention “(the
Drittwirkung),” –inherent in obligations erga omnes,-"without which the conventional
obligations of protection would be reduced to little more than a dead letter.” (paras.
2-3). I added that given the circumstances of that case–and of the present case as
well-it is clear that
1
.
The provisional measures of protection adopted by the Inter-American Court in this one Order
alone are protecting close to six thousand people: the communities of the Kankuamo people that are
threatened with extinction and are struggling to rebuild their city, are now integrated, according to the
request for provisional measures received from the Inter-American Commission on Human Rights (July 2,
2004, p. 2, n. 1), comprising a total of 5,929 individuals, spread among 1,207 families.