20
70.
I have not yet concluded this Concurring Opinion since, before doing so, I would like to
return to where I started. Participating in the Inter-American Court is like coexisting with the
tragedy of the vulnerable human condition, of the injustices and the violence that surround
and threaten it. It’s like being on a ship in the middle of the stormy high seas, where there is
no way to avoid the storms: instead, you have to face them. If grave violations to human
rights occur, affecting growing circles of 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
62
S.T. Coleridge, op. cit. supra n. (1), verses 443-445.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents