5
“organize the public authorities to guarantee persons subject to its jurisdiction the
free and full exercise of human rights,” a duty that –as the Court significantly added“applies whether those responsible for the violations of those rights are members of
the public authorities, private individuals, or groups” (para. 174).
12.
These considerations of the Court were reiterated in its new obiter dicta in the
Judgments on reparations in thefollowing cases: Loayza Tamayo (1998, para. 170),
Castillo Páez (1998, para. 107), Blake (1999, para. 64), Villagrán Morales et al. (2001,
para. 100), Cesti Hurtado (2001, para. 63), Cantoral Benavides (2001, para. 69),
Bámaca Velásquez (2002, para. 64), Trujillo Oroza (2002, para. 97), and likewise in
other obiter dicta in recent Judgments in the Juan Humberto Sánchez (2003, para.
143) and Bulacio (2003, para. 120) cases. Recognition of the duty of the State to
combat impunity is, thus, expressed in the case law of the Inter-American Court.
13.
All those of us who have had the experience and the responsibility of acting
with dedication in the international adjudication of human rights know that crimes of
State do, in fact exist, and we know what this means. In my view, the international
criminal responsibility of the individual does not involve an exemption of the
responsibility of the State. We are still in the early stages of a long process of
evolution in this area, in which the recent establishment of the ICC constitutes one of
the most significant moments in the struggle against impunity, but not the culmination
as regards the international responsibility of the States. The latter is outside its scope;
its determination is, rather, under the jurisdiction of the international human rights
courts, which in turn cannot establish the international criminal responsibility of
individuals. This segmented way of conceiving international responsibility –that of
States and that of individuals- entails, in both cases, that eradication of impunity is
only partial. For it to be total, comprehensive, it is necessary to affirm and determine,
concomitantly, the responsibility both of the State and of the individual (the agent of
the State), which are complementary.
III.
Complementarity between the International Responsibility of
States and the International Criminal Responsibility of
Individuals.
14.
In my view, international responsibility of the State and the international
criminal responsibility of the individual are not mutually exclusive, but rather
complementary. This is so because a public agent acts on behalf of a State, and both
the State and its agent must answer for the acts or omissions attributable to both.
International human rights courts focus on the international responsibility of the State,
and ad hoc international criminal courts (for former Yugoslavia and for Rwanda) - and
in the future the ICC – focus on that of the individuals involved. Neither the former nor
the latter encompass the whole matter at the current stage of evolution.
15.
Consideration of international responsibility must not restrict itself to the rigid
segmentation of civil and criminal responsibility found in the national legal systems.
use all the legal means at its disposal to combat that situation, since impunity fosters chronic recidivism
of human rights violations, and total defenselessness of victims and their relatives” (Series C, n. 37, para.
173).
19
.
Under Article 1(1) of the American Convention on Human Rights.
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