27
address preliminary objections, merits, and reparations. Even though the subject
matter of the hearing would be reparations, these could hardly be examined –and
this would be factually and juridically impossible- without referring to the facts that
are their source and to the violations that explain and justify them.
15.
On the other hand, the account of the facts in the judgment, even though the
dispute on them has ceased, serves various pertinent purposes. First, it provides the
motivation for the judicial ruling itself, which could not be issued in a “vacuum” nor
based only and exclusively –for the reasons I gave above, supra sub 4, 10 and 13on the expressions of the will of the parties. It also addresses the “instructive” aim,
if I may use this term, that the judgments of an international human rights court
must have, which might not exist in the situation of a national criminal court, save
for the “general prevention” role of acts of criminal justice. And finally, they help
clarify the connection between the stage of the proceeding that is closed by that
ruling and the stage that it opens: that of reparations, which involve that “the
injured party be ensured the enjoyment of his right or freedom that was violated”
and reparation of “the consequences of the measure or situation that constituted the
breach of such right or freedom” (Article 63(1) of the American Convention), if
applicable. With respect to the latter, it is also necessary to consider -even though
the respective formal statement should be made in the ruling on reparations- that
the account of the facts, in addition to their admission and that of the attendant
violations by the State, in itself has a certain efficacy in terms of redress, as the
Court has repeatedly stated.
16.
The decision on reparations is based on the facts established during the prior
stages of the proceeding and the violations proven during them. Thus, the judgment
on the merits is the prerequisite and the condition for the judgment on reparations,
save –of course- when both subjects are examined in a single ruling, as the Court
now seeks to do, to make the proceeding more concentrated and to better serve the
principles of procedural economy and promptness, the observance of which
significantly contributes to the adequate development of the Inter-American
proceedings and ultimately benefits the victim. The linkage between the facts
reflected in the April 29 judgment and the reparations whose specification is yet
pending can be seen even more clearly if we consider the explicit references in the
judgment to specific aspects of those facts with the aim of deciding equally specific
aspects in the reparations (para. 51), a point that I will address infra, in paragraph
17 of this Opinion.
17.
In the course of the proceeding and in the very judgment to which I attach
this Opinion, there have been references to what the Commission in its application
called a “genocidal policy of the State with the intention of destroying, fully or in
part, the indigenous Mayan people,” a position that was also expressed by the
representatives of the victims. These references suggest that we consider the
implications that the violations might have from the perspective of other
international instruments, especially the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide. In this regard, the judgment of the Court
contains certain expressions (para. 51) that I share and that I deem pertinent to
comment.
18.
The Inter-American Court of Human Rights, established by means of a
convention in 1969, exercises its competence in accordance with those provisions,
agreed upon by the States parties to the American Convention, as well as with the
provisions of other instruments that explicitly grant it new areas of subject-matter
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