CONCURRING OPINION OF JUDGE A.A. CANÇADO TRINDADE 1 1. I vote in favour of the adoption, by the Inter-American Court of Human Rights, of the present Judgment on the merits and reparations in the Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago Case, which is consistent with the relevant provisions and the spirit of the American Convention on Human Rights. This is the first time that an international tribunal finds that the “mandatory” death penalty violates a human rights treaty such as the American Convention, that the right to life is violated by the generic and automatic application of the death penalty, without individualization and without due process guarantees, and that, among the reparations, the violating State should modify its penal legislation to bring it into compliance with the dictates of international human rights protection and abstain, in all cases, from executing those sentenced to death. 2. Given the transcendental importance of the issue considered in this landmark Judgment of the Inter-American Court, I feel compelled to present my personal reflections on the matter, in the present Concurring Opinion. In reality, it is hard to avoid the sensation that everything one could say about the imposition of capital punishment has been written: there are, in fact, whole libraries of materials on the subject. However, a universally accepted solution to the main dilemmas regarding the termination of life in certain circumstances has yet to be achieved. I fear that it will be difficult to find a solution in the limited realm of Law, and even less so in the realm of positive rights. It is not my intention to address the many facets of this complex issue in the context of the cas d’espèce in this Concurring Opinion, but rather to make known my marked concerns about questions of fundamental importance that have gone unaddressed for over two centuries by those who insist on retaining capital punishment. These issues become even more important when its application is carried out, as in the present case of Hilaire, Constantine and Benjamin et al., in the so-called “mandatory” manner. I. Law and Death: Jus Talionis and the Arbitrary Deprivation of Life 3. Arbitrary deprivation of life is commonly associated with the crime of murder. But there are different ways to arbitrarily deprive a person of life according to the terms of the prohibition found in Article 4(1) of the American Convention: when death is a direct consequence of an illicit act of murder, as well as when circumstances (such as misery) that impede access to conditions necessary for a dignified life are not avoided. 2 The present Case, Hilaire, Constantine and Benjamin et al., reveals that arbitrary deprivation of life can occur through “legal” actions by State actors pursuant to a law that is a source of arbitrariness, and, as such, is incompatible with the American Convention; in other words, the arbitrary deprivation of life can occur via actions or omissions not only of individuals (in inter-personal relationships), but also of the State itself as demonstrated by the cas d’espèce. 4. Trinidad and Tobago’s Offences Against the Person Act of 1925, which requires the application of the “mandatory” death penalty for the crime of murder, as 1 This opinion was written in Spanish language and translated into English by the Secretariat of the Inter-American Court of Human Rights. 2 Cf. On this issue see the I/A Court of H. R., The“Street Children” Case (Villagrán Morales et al. v. Guatemala, Merits). Judgment of November 19, 1999. Series C No. 63, pp. 64-65, para. 144.