79.
The Court reiterated this warning ipsis literis in the cases of the Gómez
Paquiyauri Brothers (Judgment of 07.08.2004, para. 111), and of Lori Berenson
(Judgment of 11.25.2004, para. 100), both regarding Peru, as well as in the case of
Tibi versus Ecuador (Judgment of 09.08.2004), in which it also stated that “there is an
international juridical regime of absolute prohibition of all the forms of torture, both
physical and psychological, regime that currently belongs to the sphere of the jus
cogens (para. 143). Still regarding the subject in examination, in my Concurring
Opinion in the case of the Mapiripán Massacre versus Colombia (Judgment of
09.15.2005), I allowed myself to consider that
"One does not combat terror with terror, but rather within the
framework of the Law. Those who resort to the use of brute force
brutalize themselves, creating a spiral of widespread violence that
ends up turning the innocent (…) into victims. (...)
Brute force generates brute force, and at the end, what do we
have? Nothing, general devastation, the breakdown of the social
fabric, vengeance, torture, and summary executions and other grave
violations of International Humanitarian Law and International
Human Rights Law, the transformation of human beings into mere
instruments of confrontation and destruction –opening wounds that
will require generations to heal." (paras. 46-47)
80.
In confirmation of the understanding held by the Court regarding the matter in
examination, the Inter-American Convention against Terrorism (2002) states, in its
Article 15, that the measures adopted by the States Parties pursuant to its regulations
“will be carried out with full respect for the rule of Law, human rights, and
fundamental freedoms.” (para. 1) It immediately safeguards the conventional
obligations of the States Parties pursuant to “International Humanitarian Law,
International Human Rights Law, and International Refugee Law.” (para. 2) And it
adds that “any person who is taken into custody or regarding whom any other
measures are taken or proceedings are carried out pursuant to this Convention shall
be guaranteed fair treatment, including the enjoyment of all rights and guarantees in
conformity with the law of the state in the territory of which that person is present
and applicable provisions of international law."49
3.
Victims and Precisions with regard to the Applicable Law.
81.
In my General Course of International Public Law,50 offered in the Academy of
International Law of The Hague in 2005, when referring to the Final Reports of
contemporary Commissions of Truth,51 I allowed myself to state precisely that
.
I was present, as President at that time of the Inter-American Court, in the
General Assembly of the Organization of American States (OAS) of 2002, held in
Bridgetown, Barbados, upon the adoption of the Inter-American Convention Against
Terrorism and in the three days that preceded it. I remember that the insertion of the
important Article 15 in the Inter-American Convention Against Terrorism resulted from
a successful Latin American diplomatic initiative, presented at the last minute during
the final stage of its travaux préparatoires, a little before the adoption of the
mentioned Convention in the full session of 06.03.2002 of the General Assembly of
the OAS (resolution AG/RES.1840 (XXXII-0/02)). The mentioned Article 15 must
receive credit for enshrining, in an unmistakable manner, the protection of human
rights in midst of the fight against terrorism.
49
.
Chapter XV, on the responsibility for international crimes and universal
jurisdiction.
50