"They warn against responding to crimes committed by nonState entities (including terrorist groups) with crimes perpetrated by
the State itself: the results are invariably the disruption of the rule of
law (État de droit), social decomposition, killings of innocent people,
impunity and corruption."52
In the same line of thought, I added in my Concurring Opinion in the case of Acosta
Calderón versus Ecuador (Judgment of 06.24.2005), that “The serious evils or our
times, - drug trafficking, terrorism, organized crime, among so many others, - must
be combated from within the Law, since they can not simply be confronted with their
own weapons: said evils may only be overcome from within the Law." (para. 8)
82.
At the same time, the victims of violations to human rights that result from
terrorist acts can find themselves in different juridical situations if said acts have been
perpetrated, on one hand, by mere individuals or clandestine or non-identified agents
or, on the other hand, by agents of the State itself. Both types of victims are, all of
them, under the protection of the Law, even when the applicable law is different in
one case and the other. The concerning contemporary diversification of the sources of
the violations to human rights does not because of that deprive or remove the victims
from the protection of the Law, which is due to them in any and all circumstances.
83.
The victims of violations to human rights attributable to the State are
protected by the regulations of International Human Rights Law (along with the rights
enshrined in the constitution), which precisely determines the State’s international
responsibility, - while the victims of terrorist acts attributable to non-state agents or
groups are protected by the regulations of criminal law, which precisely determines
the criminal responsibility of individuals, and whose application must be pursuant to
the international human rights regulations binding to the State in question. Thus,
nobody is removed from the protection of the Law, even when the applicable law may
be different according to the circumstances of each specific case.
84.
Both the State through its powers or agents, as well as simple individuals
(even clandestine or non-identified agents), are compelled to not violate the rights
inherent to human beings. Said obligation is enshrined, in the human rights treaties
and treaties of International Humanitarian Law (that are binding to the State in
question), as well as the regulations of domestic criminal law (that must be applied
pursuant to those treaties). The victims of terrorist acts or their next of kin can seek
justice through criminal law. As has been stated in a recent study on the subject,
"The issue of the obligations of the non-State actor as regards
the right to life hardly arises in practice. Taking a life is clearly illegal
under national law and there would normally be no reason to raise this
before a national court in terms of human rights law."53
.
Cf., e.g., inter alia, Commission on Truth and Reconciliation [CVR], Final
Report – General Conclusions, Lima/Peru, CVR, 2003, pp. 11-20, 30 and 34-43, and
cf. pp. 24 and 26-29; and for a recent evaluation, cf. Defensoría del Pueblo [DP], A
Dos Años de la Comisión de la Verdad y Reconciliación, Lima/Perú, DP/Informe
Defensorial n. 97, 2005, pp. 17-333.
51
.
A.A. Cançado Trindade, "International Law for Humankind: Towards a New Jus
Gentium - General Course on Public International Law - Part I", 316 Recueil des Cours
de l'Académie de Droit International de la Haye (2005) p. 431.
52
.
53
A. Clapham, Human Rights Obligations of Non-State Actors, op. cit. supra n.