CONCURRING OPION OF JUDGE DIEGO GARCIA-SAYAN IN RELATION TO
THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE
CASE OF GONZÁLEZ ET AL. (“COTTON FIELD”) V. MEXICO,
OF NOVEMBER 16, 2009
1.
Violence against women is a tragedy with different dimensions and
symptoms. Without doubt, it is one of most extended and persistent expressions of
discrimination throughout the world, and it is reflected in conduct ranging from
subtle and veiled manifestations to inhuman and abusive situations. The violence
against women in Ciudad Juárez, of which Claudia Ivette González, Esmeralda
Herrera Monreal and Laura Berenice Ramos Monárrez were victims, falls into the
latter category, which is the type of violence referred to in this Judgment in the case
of González et al. (“Cotton Field”) v. Mexico (hereinafter “the Judgment”). As the
Inter-American Court of Human Rights (hereinafter “the Inter-American Court,” “the
Court,” or “the Tribunal”) states in the Judgment, the facts described have been
influenced “by a culture of gender-based discrimination” (para. 164). This culture
“has had an impact on both the motives and the method of the crimes, as well as on
the response of the authorities” (para. 164). According to the Judgment, one
example of this was “the ineffective responses and the indifferent attitudes that have
been documented in relation to the investigation of these crimes” (para. 164)
regarding which the Court has established the State’s international responsibility.
2.
In the case of the violent acts against women in Ciudad Juárez, the Court has
pondered in the Judgment whether the acts perpetrated against the victims that
culminated in the deaths of Mss. González, Herrera Monreal and Ramos Monárrez,
could be attributed to the State (para. 231). The Court established that it lacked
elements to conclude that the perpetrators were State agents (para. 242) and
focused its reasoning on the State’s possible responsibility for failing to comply with
its obligation to guarantee.
3.
The issue of the obligation to prevent has been examined by international
justice, in general, and by this Court, in particular, with a clear focus,
notwithstanding the undoubted complexity of the problem. The Court’s jurisprudence
has established precise fundamental criteria on the obligation to prevent. These
criteria are more specific, evidently, in the case of individuals who are in the custody
of the State, as in the case of a center where minors were interned1 or situations in
which the State occupies a special position of guarantor, as in the case of an
indigenous community that has been displaced because it has been ousted from its
land.2
4.
Indeed, in more specific situations such as those in Ximenes Lopes v. Brazil or
Yakye Axa v. Paraguay, the Court’s criteria have been more precise, because these
cases related to human groups occupying spaces under the custody of the State in
view of the specific characteristics of the problems in each case. In the case of
Ximenes Lopes, the Court established that, since this case related to individuals with
mental disabilities who were in the custody or care of the State,3 the State had
incurred international responsibility because it had failed to comply with its obligation
1
Cf. Case of Ximenes Lopes v. Brazil. Merits, Reparations and Costs. Judgment of July 4, 2006.
Series C No. 149.
2
Cf. Case of Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.
Judgment of June 17, 2005. Series C No. 125
3
Cf. Case of Ximenes Lopes v. Brazil, supra note 1, para. 138.
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