28
competence, also agreed upon by the States parties in the respective international
acts, such as the San Salvador Protocol –which defines said competence under the
terms of Article 19(6)-, the Inter-American Convention to prevent and punish
torture, and the Inter-American Convention on forced disappearance of persons. The
States have accepted the adjudicatory jurisdiction of the Court based on an
understanding of the scope of said provisions.
19.
Now then, the above does not impede the Inter-American Court from invoking
elements or references contained in international Law as a whole, when it is
appropriate to do so to interpret or integrate the provisions of the aforementioned
conventions and protocol, bearing in mind the characteristics of the facts alleged and
the text and meaning of the immediately applicable provisions. In this event, other
instruments are not directly applied, to decide on violations of the rights or duties set
forth in them, but rather they are used as elements of interpretation, assessment or
judgment for a better understanding and the immediate application of the principles
that explicitly grant it competence; in other words, for the direct application of the
provisions contained in the latter. In this regard, it is pertinent to take into account
what has been expressed in several rulings (such as the judgments in the Case of
“Street Children” (Villagrán Morales et al.), November 19, 1999 Judgment, Series C
No. 63, paras. 192-195; and Case of Bámaca Velásquez, November 25, 2000
Judgment, Series C No. 70, paras. 208-210, as well as Advisory Opinion OC-17/2002
of August 28, 2002, on the “Legal status and human rights of the child,” paras. 24
and 28-30).
20.
Abridgment of a right enshrined in a provision of a convention -aside from the
fact that it may also be embodied at other levels of national and international legal
provisions and culture, which may be the basis for that provision- entails damage to
a high-ranking right that warrants protection. Gravity of the damage is linked to the
hierarchy of that right, the way it is harmed, and the fact, found in various
situations, that the abridgment affects various rights at the same time. In this
regard, we can bring in as a useful analogy or reference the criterion previously set
forth by the Inter-American Court when it examined Article 4(1) of the American
Convention in the judgments in the Cases of Hilaire, Constantine and Benjamín et al.
(June 21, 2002 Judgments), to which I also added a Separate Concurring Opinion.
The issue of “greater gravity” of an abridgment was also addressed, conceptually and
juridically, in those cases. Some of the ideas stated then –with variations due to the
shift from the criminal to the international order, and bearing in mind the specificities
involved with respect to Article 4(1)- are equally applicable to the subject we are
now addressing, and they contribute to the establishment of the “greater gravity”
that may, also, be reflected in the consequences associated with State responsibility.
21.
In the instant case, the facts “gravely affected the members of the Maya achí
people in their identity and values and [...] took place within a pattern of massacres”
(para. 51). The court has decided to examine the characteristics of these facts, many
of which are notorious, “at the time when it rules on reparations” (id.). This means
that said characteristics may be reflected in the reparations themselves, bearing in
mind two aspects that naturally exist: the nature of the facts and the way they
occurred (context, means, realization, consequences that will enable consideration of
the magnitude and the conditions of the violation). This will lead to establishment of
the gravity of the facts and the manner in which they should be assessed in the
judgment on reparations. This does not modify the imputation of the facts to the
State, due to actions or omissions of its agents, but it contributes to establishing
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