SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I vote in favour of the present Judgment on reparations which the InterAmerican Court of Human Rights has just adopted in the case Bámaca Velásquez
versus Guatemala, which I consider a new advance in its recent jurisprudential
construction. The transcendental questions examined by the Court lead me to some
reflections, which I feel obliged to give expression to in this Separate Opinion, as the
foundation of my position on the matter. It is significant that the first resolutory point
of the present Judgment has stressed the determination of the Court to see to it that
the respondent State finds the mortal remains of Mr. Efraín Bámaca Velásquez,
proceeds to their exhumation in the presence of his widow and relatives, and gives
those remains to them. My thoughts concentrate onn four specific aspects pertaining to
this resolutory point of the Judgment, which I allow myself here to call: a) the time, the
living law, and the dead; b) the projection of human suffering in time; c) the passing of
time, and the repercussion of the solidarity between the living and the dead in the Law;
and d) la precariousness of the human condition and the universal human rights.
I.
The Time, the Living Law, and the Dead.
2.
One of the manifestations of the unity of the human kind lies in the links
between the living (titulaires of the human rights) and the dead (with their spiritual
legacy)1. Thus, e.g., the respect for the dead is due in the persons of the living. Always
cultivated in the most distinct cultures and religions, the respect for the dead is
safeguarded in the domain of Law2, which, thereby, gives concrete expression to a
universal sentiment of the human conscience. In effect, in comparative law it is found
that the penal codes of numerous countries tipify and sanction the crimes against the
respect for the dead (such as, e.g., the subtraction and the hiding of the mortal
remains of a human being). The question marks presence in national as well as
international case-law3. On its turn, International Humanitarian Law also imposes
expressly the respect for the mortal remains of the dead persons, as well as a burial
place with dignity for them4.
3.
Underlying these norms is the constant search - present in all cultures and
philosophical traditions of all peoples in all times - for an understanding of death. But
despite all the attention dedicated to the theme in the cultures and the modes of
expression of the human feelings (such as literature and the arts), curiously all the rich
contemporary thinking on the rights inherent to the human being has concentrated
almost exclusively in the persons of the living (as titulaires of those rights), failing to
recollect with sufficient clarity the links between these latter and their dead, even to
1
.
As I saw it fit to point out in my Separate Opinions in the cases of Bámaca Velásquez (Merits, 2000,
pars. 14-18) and of the "Street Children" (Reparations, 2001, par. 25).
2
.
Already the ancient Roman law, for example, safeguarded penally such respect for the dead.
3
.
Cf., as to this latter, e.g., the Advisory Opinion of the International Court of Justice (of 16.10.1975)
on the Western Sahara, in: ICJ Reports (1975) pp. 68, 36 and 41, pars. 162, 70 and 87.
4
.
Geneva Convention of 1949 on the Protection of Civilian Persons in Time of War, Article 130;
Additional Protocol I of 1977 to the Geneva Conventions of 1949, Article 34.