12
34.
This is not the first time that the Court has affirmed the expansion of the
concept of victim43 under the American Convention, to encompass both the direct
victim and the indirect victims (his or her next of kin). I believe that expansion of the
juridical-procedural capacity and personality of the human being is in accordance with
the true needs of the contemporary international community. In my Separate Opinion
in the Villagrán Morales et al. versus Guatemala case (the “Street Children” case,
Judgment on reparations of 26.05.2001), I reflected that the indirect victims (the
immediate next of kin) also:
“have suffered an irreparable loss, as their lives will never more be the same. The loss, at
a given moment of their lives, of the beloved one, has thrown them into a "selva oscura",
wherefrom they will have to endeavour to get out, through suffering (and only suffering),
in order not only to honour the memory of their dead, but also to transcend the darkness
of human existence, and to attempt to get closer to the light and to know the true reality,
during the time which is left to them of the brief journey of each one in this world (the
very brief cammin di nostra vita, which does not allow us to know all that we need). The
realization of justice contributes at least to structure their psychic life, to reawake their
faith and hope, and to set in order their human relations with their fellowmen. Every true
jurist has, thus, the ineluctable duty to give his contribution to the realization of justice,
from the perspective of the integrality of the personality of the victims” (para. 40).
35.
In that same Separate Opinion, I added:
“For a long time I have been insisting that the great juridical revolution of the XXth
century has been the one consolidated by the International Law of Human Rights, in
erecting the human being as subject of International Law, endowed, as a true complaining
party against the State, with full juridico-procedural capacity at international level44. The
present case of the "Street Children", in which the forgotten ones of this world succeed to
resort to an international tribunal in order to vindicate their rights as human beings, gives
an eloquent testimony of this. In the ambit of application of this new corpus juris, it is
undoubtedly the victim who appropriately assumes the central position. (...) This
development appears in conformity with the very aims of Law, the addressees of whose
norms are, ultimately, the human beings” (para. 16).
The true revolution of contemporary juridical thinking lies, in my view, not so much in
criminal international law (as it is currently in vogue to believe), but rather in
International Human Rights Law, as the latter deems that individuals, whatever the
extremely adverse circumstances they may find themselves in) can invoke and put into
practice (as active subjects of International Law) the international responsibility of the
State for violations of the rights that are inherent to them as human beings.
43
.
On evolution of the concept of the victim in International Human Rights Law, cf. A.A. Cançado
Trindade, "Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (At
Global and Regional Levels)", 202 Recueil des Cours de l'Académie de Droit International de La Haye (1987)
243-299.
44
.
Cf., e.g., A.A. Cançado Trindade, "Las Cláusulas Pétreas de la Protección Internacional del Ser
Humano: El Acceso Directo de los Individuos a la Justicia a Nivel Internacional y la Intangibilidad de la
Jurisdicción Obligatoria de los Tribunales Internacionales de Derechos Humanos", in El Sistema
Interamericano de Protección de los Derechos Humanos en el Umbral del Siglo XXI - Memoria del Seminario
(November 1999), volume I, San Jose, Costa Rica, Inter-American Court of Human Rights, 2001, pp. 3-68.
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