of having executed or tolerated practices on its territory such as those described in the instant
case. This is why it will now proceed to examine the evidence and, notwithstanding what has
already been said, be able to establish the truth of the allegations in a convincing manner. 360
283. In the instant case, because the use of lethal force occurred as part of an operation
designed specifically for particular circumstances, the Inter-American Court finds it
appropriate, as the European Court of Human Rights has done, to examine the process of
planning and control of the operations, to find whether the State sought to “minimise, to the
greatest extent possible, recourse to lethal force and human losses, and whether all feasible
precautions in the choice of means and methods of a security operation were taken.” 361
284. The Court finds it significant for the purpose of examining this case to emphasize that
even under trying circumstances, the State: (i) designed a rescue operation, (ii) selected
qualified personnel to conduct it, (iii) built a replica of the place where the hostages were being
held,362 (iv) provided intensive training for the officers selected, to ensure that the operation
would be effective, and (v) planned Operation “Nipón 96” based on circumstances in which
“daily life” was taking place inside the ambassador’s residence (supra paras. 151 to 159). The
Court reiterates that the primary objective of the operation was to safeguard the lives of the
hostages.
285. The representatives and the Commission assured in their closing arguments that they
did not challenge the design and planning of the operation, but the representatives also
claimed in the hearing that the possibility that MRTA members might be captured alive was
neither anticipated nor put into practice. The State questioned this line of reasoning, claiming
that such a statement actually made reference to the technique used to take control of the
property, known as selective instinctive shooting; thus, in the State’s view, it was clearly
contradictory to suggest that the representatives had not questioned the design and planning
of the operation. The State did not deny that it had used this technique but did note that “it is
not an action prohibited under international law.”
286. The Court notes that, at least at the operational level, some of the planning had indeed
considered the possibility of capturing the MRTA members. 363 Similarly, most of the
commandos stated that the planning phase of the operation did in fact consider the capture of
MRTA members, who were to be searched, disarmed, neutralized, and evacuated, upon which
commandos were to immediately notify their ranking officers and await further instructions.
Nonetheless, the priorities were, first, to rescue the hostage, second, to evacuate wounded
commandos, and third, to evacuate MRTA members. These declarants also said consistently
that they had received no orders, instructions or comments from their commanding officers to
eliminate all the MRTA members.364 To the contrary, they said that their only mission was to
rescue the hostages alive.
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 129, and Case of Gutiérrez and family v.
Argentina, supra, para. 79.
360
ECtHR, Ergi v. Turkey, No. 23818/94. Judgment of July 28, 1998, para. 79, and Finogenov and Others v.
Russia, Nos. 18299/03 and 27311/03. Judgment of December 20, 2011, para. 208.
361
Even though it was not perfectly identical to the original residence, as explained in the “procedure to
“reconstruct the facts.”
362
Cf. Plan of Operations A. “NIPON” 96 (1st Div FFEE), January 1997, pp. 2 to 5 (evidence file, volume I,
annex 2 to the case submission brief, folios 26 to 29) and Plan of Operations B. “NIPON” 96 / “TENAZ” (“Tenaz”
Patrol), January 1997, pp. 4 and 6 (evidence file, volume I, annex 2 to the case submission brief, folios 35 and 37).
363
Cf. Statements contained in the case file of the military courts (evidence file, further helpful evidence,
volumes XXII to XXV).
364