85.
They can, however, turn to human rights regulations to reinforce the legal
arguments within the framework of domestic criminal law, and even to seek the
application of the relevant rules of the human rights treaties binding to the State in
question within the realm of its domestic law. But if the terrorist acts included the
participation or connivance, or knowledge and negligence of the State in question, endowed with the legislative power in criminal matters, among other subjects, promptly compromising its own international responsibility, the corresponding
regulations of International Human Rights Law must be applied immediately for the
determination of the State’s responsibility.
86.
Besides this, since facts are richer than regulations and they require from the
latter a constant aggiornamento, even to offer greater protection to the victims of
violations of human rights, there are situations of a high complexity that require
clairvoyance, by the court or judge called upon to settle a dispute, in what refers to
the identification itself of the applicable law. An example can be found in the
determination of the possible effect of a human rights treaty with regard to third
parties (the Drittwirkung), - who could be the perpetrators of terrorist acts.
87.
The effect of international human rights regulations would occur, in said
circumstances, based on the theory of the positive obligations of protection by the
State. In the European protection system, this aspect has been developed, v.g., in the
pioneer monograph by the jurist from Luxembourg Dean Spielmann.54 In the InterAmerican protection system, the same matter has been developed in several of my
Opinions within this Court regarding the Drittwirkung.55 If the State does not assume
its positive obligations of protection, it becomes responsible for negligence or omission
within the international realm, ass well as criminally responsible as perpetrators of
terrorist acts within the realm of the domestic law.
88.
The State is responsible for the protection of every person under its
jurisdiction, for the safety of human beings, even against terrorist acts. It cannot,
(7), p. 368.
.
D. Spielmann, L'effet potentiel de la Convention européenne..., op. cit. supra
n. (7), pp. 75-77, 79, 82-84 and 88, for the possibility to study the possible effect of
the European Convention on third parties in the light of the theory of the positive
obligations of protection.
54
.
V.g., in my Concurring Opinions in the Judgments of the Court in the cases of
the Mapiripán Masscare versus Colombia (of 09.15.2005) and of the Massacre of
Pueblo Bello versus Colombia (of 01.31.2006), as well as in my Concurring Opinions in
the Orders of the Court on Provisional Protection Measures in the cases of the
Communities of Jiguamiandó and Curbaradó versus Colombia (of 03.06.2003 and
03.15.2005), of Pueblo Indígena Kankuamo versus Colombia (of 07.05.2004), of the
Pueblo Indígena of Sarayaku versus Ecuador (of 07.06.2004), of the Urso Branco
Prison versus Brazil of 07.07.2004), of the `Globovisión' Television Station versus
Venezuela (of the 09.04.2004), of the Peace Community of San José de Apartadó
versus Colombia (of 03.15.2005); and, finally, also in my Concurring Opinions in the
Court’s Orders on Provisional Measures of Protection in the cases of the Mendoza
Prisons versus Argentina (of 0.3.30.2006), and of the Araraquara Penitentiary versus
Brazil (of 09.30.2006). Cf. the texts of my mentioned Opinions reproduced in: A.A.
Cançado Trindade, Derecho Internacional de los Derechos Humanos - Esencia y
Trascendencia (Votos en la Corte Interamericana de Derechos Humanos, 1991-2006),
México, Edit. Porrúa/Universidad Iberoamericana, 2007, pp. 595-613, 629-654, 891929, 984-991, and 1002-1019.
55