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2. The civilian population as such, as well as individual civilians, shall not be the object of attack.
Acts or threats of violence the primary purpose of which is to spread terror among the civilian
population are prohibited.
3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take
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a direct part in hostilities.
199.
Furthermore, the United Nations Security Council expressed concern in its resolutions 1261
(1999) and 1325 (2000) “that civilians, particularly women and children, account for the vast majority of those
adversely affected by armed conflict, including as refugees and internally displaced persons, and increasingly are
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targeted by combatants and armed elements…”
200.
The Commission finds that in the instant case the right to life was violated of Francisco Hilario
Torres; his wife, Dionicia Quispe Malqui; their daughters, Antonia and Magdalena Hilario Quispe; their daughter-inlaw, Mercedes Carhuapoma de la Cruz; Ramón Hilario Morán and his wife, Dionicia Guillén; and Elihoref Huamaní
Vergara, as well as of the children: Yessenia, Miriam and Edith Osnayo Hilario; Wilmer Hilario Carhuapoma; Alex
Jorge Hilario; and the brothers Raúl and Héctor Hilario Guillén, since it may be reasonably infer from all the
evidence, including Viviano Hilario Mancha´s testimony before the Prosecutors Office of July 12, 1991, in which he
stated he saw the half-buried corpse of his grandson along with others who could not recognize, and from the
report of the Truth and Reconciliation Committee that the members of the Escorpio military patrol killed the
victims and later blew up their corpses with dynamite. The Commission notes that 20 years after the events
occurred, the remains found at Misteriosa mine have still not been identified or delivered to their relatives.
201.
Based on the foregoing, the Commission finds that there is sufficient evidence in the instant case
to conclude that Peru is responsible for violation of Articles 7, 5, and 4 of the American Convention in conjunction
with Article 1(1) thereof, to the detriment of the 15 victims in the case.
202.
As regards the right to recognition of juridical personality, the Commission recalls that this right
is an essential and necessary prerequisite in order to hold and exercise all rights, since without it, a person does
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not enjoy the protection and guarantees that the law offers, simply because they are invisible to it.
203.
By its very nature, forced disappearance of persons seeks the juridical annulment of the
individual precisely in order to remove them from the protection that the laws and justice afford them. Thus, the
apparatus of repression ensures that persons may be deprived of their rights with impunity by placing them
beyond the reach of any possible judicial protection. The aim of those who perpetrate forced disappearance is to
operate outside the law and conceal any evidence of crime, thereby seeking to avert its investigation and
punishment, and prevent the person or their next-of-kin from filing suit or, in the event suit is filed, from
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accomplishing a positive result.
204.
In this connection, in various instances in the past the Inter-American Commission has
consistently held that a person who has been detained and disappeared is “necessarily placed outside of and
excluded from the juridical and institutional order of the State, which ha[s] the effect of denying recognition of
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Colombia ratified Protocol II Additional to the Geneva Conventions on August 14, 1995.
http://www2.ohchr.org/english/law/protocol2.htm.
Available at:
157
United Nations, Security Council, S/RES/1325 (2000) of 31 October 2000.
158
IACHR, Report No. 95/09, Cases 12.494, 12.517, 12.518, Gregoria Herminia et al., El Salvador, September 8, 2009,
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IACHR, Report No. 95/09, Cases 12.494, 12.517, 12.518, Gregoria Herminia et al., El Salvador, September 8, 2009,
par. 207.
par. 208.