5 preventative or precautionary, to avoid irreparable damage from being inflicted on people. Now, in the present case there does not merely exist a law which in itself contravenes the American Convention, which would invoke the considerations that I have referred to above and could justify - from a certain doctrinal perspective the deliberation and judgment of the international tribunal. One more stage in the iter has been completed: the law was applied by way of judgment; 14 it was already decided, individually and imperatively, that the lives of certain persons must be taken. The accused's right, regarded as potentially jeopardized by the law, in the end was in fact affected by the judgment. For the accused, the deprivation of life is not merely a possibility, rather it is an imminent reality to which the punitive power of the State is directed, formally and explicitly. 7. The first issue I propose to examine with respect to the incongruity between the Offences Against the Person Act and the American Convention concerns the limitation in the application of the death penalty to only the "most serious crimes" as stated in Article 4(2) of that international instrument. It is important therefore to identify those crimes that are "the most serious" in a determinate time and space within criminal law. These must be identified and the natural result of a classification of this category - diverse sanctions - be speedily adopted to be able to inform criminal legislation, the reason and intention being two-fold: justice and effectiveness. The same classical thinker whom I cited above best summarized this concern in stating: "If the same punishment is meted out for crimes which unequally offend society, men will not encounter a very significant obstacle in committing the more depraved crime, where they perceive in it a greater advantage." 15 8. I would like to address an idea now, rather than later, that has been presented on occasion and which proposes that the "most serious" crimes be identified as those which are sanctioned by capital punishment, the most severe of all penalties. 16 This characterization is unsatisfactory, and for the purposes of this Opinion, it is also tautological. It is easy to caution, that if such a criteria were adopted a determination as to gravity - which entails a determination as well as to protected interests and basic rights - would remain subject to a vacillating discretion. Instead of relating the seriousness of a crime to its corresponding penalty, the severity should be linked to the intrinsic gravity of the crime. It is not the seriousness of the punishment that determines the seriousness of the crime, but it is the latter which justifies the former. In sum, it is necessary to place the terms 14 In various cases, the United Nations Human Rights Committee has found a violation to the right to life of an offender sentenced to death - not yet executed - when the sentence was dictated without due observance of due process guarantees. Wright v. Jamaica, Communication No. 349/1989; Simmonds v. Jamaica, Communication No. 338/1988; Daniel Monguya Mbenge v. Zaire, Communication No. 230/1987. 15 (Translation of the Secretariat) Beccaria, De los delitos y de las penas, cit., p. 37. The same author cautions that the threat of harsher penalties for many crimes, in fact impedes "the essential proportionality between crime and punishment" (translation of the Secretariat) Id., p. 73. Included in this edition, annotated by Juan Antonio Delval, are some relevant observations of Montesquieu. In one of these, Montesquieu expresses his amazement that there exist "one hundred and sixty (acts) declared capital crimes by act of Parliament, that is, crimes that must be punished by sentence of death", (translation of the Secretariat) amongst which there exist behaviors of varying degrees of severity (Oberservations d'un voyageur anglais sur Bicêtre, 1788). 16 With respect to this argument, cf. the opinions included by Rodley, Nigel S., The treatment of prisoners under International Law, Oxford University Press, 2nd.ed., 1999, p.219.