this Court has noted that, when the basic requirements are met, the provisional measures
become a real jurisdictional guarantee of a preventive nature, as they protect human rights,
in so much as they seek to avoid irreparable harm to persons.7
6.
The three conditions required by Article 63(2) of the Convention for the Court to
order the adoption of provisional measures must be present in all the situations in which the
intervention of the Tribunal is requested. 8 Given its jurisdiction, in the framework of the
provisional measures, it falls upon the Court to only consider those arguments that are
directly related to the extreme gravity, urgency, and necessity of avoiding irreparable harm
to persons. Any other fact or argument can only by analyzed and resolved during
consideration of the merits in a contentious case. 9
7.
As regards the requirement of “gravity,” for purposes of the adoption of the
provisional measures, the Convention requires that it be "extreme", that is, that it be at the
highest or most intense level. The "urgent" nature implies that the risk or threat involved be
imminent, which requires that the response be immediate. Finally, as regard to the
damage, there must be a reasonable probability that it materialize, and it should not fall
upon legal interests that are repairable.10
8.
This Court confirms the following information provided by the Commission, which has
not been contested by the State, regarding facts and background on this matter (supra
Having Seen clause 2):
a)
On March 30, 2013, a confrontation between the Waorani and Taromenane
indigenous peoples took place, wherein all of the members of the clan to which the
girls belonged died, including their parents. 11 Moreover, the Commission noted that
the girls witnessed the murder of their mother.
b)
The Commission expressed that said “massacre had been planned in advance
and that spears and firearms were used by approximately 12 members of the Waorani
indigenous peoples, allegedly revenge for the murder with spears of Ompore and
Buganey, an adult couple of the Waorani indigenous peoples, by members of the
Taromenane indigenous peoples in voluntary isolation on March 5, 2013.”
c)
The day of the massacre, the two girls were separated from their community
and taken to the closest community where the massacre allegedly occurred.
of the Court of February 8, 2008, Considering clause 7, and Case of Barrios Family, Provisional Measures
regarding Venezuela. Order of the Court of May 30, 2013, Considering clause 2.
7
Cf. Case of the Newspaper “La Nación”. Provisional Measures regarding Costa Rica. Order of the Court of
September 7, 2001, Considering clause 4, and Case of Wong Ho Wing, Provisional Measures regarding the
Republic of Peru. Order of the Court of January 29, 2014, Considering clause 8.
8
Cf. Case of Carpio Nicolle et al., Provisional Measures regarding Guatemala, Order of the Inter-American
Court of Human Rights of July 6, 2009, Considering clause 14, and Case of Wong Ho Wing, Provisional Measures
regarding the Republic of Peru. Order of the Court of January 29, 2014, Considering clause 3.
9
Cf. Matter of James et al.. Provisional Measures regarding Trinidad and Tobago, Order of the InterAmerican Court of Human Rights of August 29, 1998, Considering clause 6, and Matter of Flores et al. in relation
to the Case of Torres Millacura et al. v. Argentina, Provisional Measures regarding the Republic of Argentina. Order
of the Court of November 26, 2013, Considering clause 4.
10
Cf. Matters of Monagas Judicial Confinement Center (“La Pica”), Yare I and Yare II Capital Region
Penitentiary Centers, and Penitentiary Center of the Western Region (Uribina Prison), and El Rodeo I and el Rodeo
II Judicial Confinement Center. Provisional Measures regarding Venezuela, Order of the Inter-American Court of
Human Rights of November 24, 2009, Considering clause 3, and Matter of Flores et al in relation to the Case of
Torres Millacura et al. v. Argentina, Provisional Measures regarding the Republic of Argentina. Order of the Court
of November 26, 2013, Considering clause 11.
11
State brief of January 25, 2014 (case file on provisional measures, tome II folio 397).
5