CONCURRING OPINION OF
JUDGES SERGIO GARCÍA RAMÍREZ
AND ALIRIO ABREU BURELLI
The jurisprudence of the Inter-American Court of Human Rights has evolved
considerably with regard to the subjective scope of the provisional measures adopted
by the Court. This evolution is appropriate considering the important ends that
provisional measures are intended to achieve.
In our concurring opinion to the Order for provisional measures of November
24, 2000, in the case of the Peace Community of San José de Apartadó, we indicated
the pertinence of expanding the scope of the measures, when advisable, so as to
encompass a group of identifiable persons, even when they had not yet been
specified precisely. On that occasion, we said that the reason to proceed as called
for in our separate opinion - and, of course, in the Court’s Order itself - was the fact
that the plurality covered by the measures was composed of persons “who are
potentially placed in the situation of being victims of acts by authorities or persons
connected to them in one way or another.”
We also observed that “membership of the group of potential victims who
benefit from the measures is not based on the precise identification and indication of
each individual by name, but according to objective criteria - based on the linkage of
membership and the observed risks - which will permit the beneficiaries to be
specified when the measures are implemented. The intention is to encompass the
danger faced by the members of a community, not merely a few individuals, as is
generally the case. It is also necessary to take into account that one of the elements
of this case, which could characterize other cases, is that the potential victims choose
not to provide their names, owing to the very real risk that this identification might
increase their exposure to the irreparable damage that we are trying to prevent.”
We are pleased to observe that this criterion, accepted for the first time in the
said Order corresponding to the Peace Community of San José de Apartadó, is the
one that prevails today in the Court’s jurisprudence, as can be observed in the
measures adopted for the Communities of the Jiguamiandó and the Curbaradó. In
this case, the measures encompass a group of identifiable persons who, because
they form part of a community, are in a situation of grave risk. Also, the State’s
obligation to protect the beneficiaries of the measures does not exist merely in
relation to the formal agents of the State itself, but also in relation to the actions of
individual third parties who may violate the rights of the beneficiaries, as described
in the Order to which this concurring opinions corresponds.
Sergio García-Ramírez
Judge
Alirio Abreu-Burelli
Judge