2
conclusions reached by this Tribunal. The circumstance that the agents may have
erred in their evaluation of the material result of their illicit conduct does not exclude
the profound illegality of it and, consequently, the attack affects one of the
fundamental rights contained in the American Convention.
7. The reflection of this international Tribunal can be reinforced and supported by
elements from criminal law. Seen from another perspective, which helps to establish
the rationality of the judgment, the issue can be understood under the theory of
attempted homicide, that is to say, a theory of iter criminis by which the integrity of
a legally protected sphere and the right which protects it are affected or put in grave
danger. The criminal denomination applicable under this theory is also the
deprivation of life (by attempt), even though the aggressor may not have attained
the goal sought. Of course –and I emphasize, in order to avoid any
misunderstanding- the Inter-American Court is not a criminal tribunal, nor does it
rule upon homicide, nor determine the existence of a punishable attempt. As a result
we should not speak of crimes or offenses consummated or attempted, but rather of
violations of human rights, and thus reserve the categories and denominations to the
appropriate fields of law.
8. Nonetheless, this unequivocal exclusion of criminal jurisdiction and the crimes
identified therein does not prevent the Tribunal from reflecting the techniques
administered by the criminal law in its analysis and for the purpose of the defense of
legally protected spheres. The criminal law includes an extensive development of the
issue that now concerns me and which determined the Court’s ruling with regard to
the survivors of the massacre. From this jurisprudential development and its
conclusions, the Tribunal, which hears cases with regard to the violation of human
rights may benefit, for its own mission.
9. In my opinion, the evaluation performed by the Court in this particular case,
characterized by specific facts, does not necessarily imply, in an of itself, that in our
subject of jurisdiction the concept of attempt –with this or any other denominationhas been introduced, as a degree of violation of all human rights, independent of the
nature of these violations and the circumstances that occur in the corresponding
attack. This issue will have to be reexamined in other cases and the appropriate
reaches and limitations must be explored in the variety of situations that it may
arise. The door remains open, then, for a future clarification of the subject until an
adequate general concept may be reached.
10. In the same period of sessions in which the Court adopted the Judgment in the
Case of the Rochela Massacre, the Court also issued its Judgment in the Case of
Bueno Alves v. Argentina, also on May 11, 2007. In this case, the path was cleared, I
hope definitively, by the procedural reflection with regard to the nature and reach of
certain acts by the State, denominated by the expression “recognition of
international responsibility” or called, as a whole “acquiescence.”
11. It is true that the human rights proceedings analyze the allegations from which
the State’s international responsibility arises for certain illicit conduct by its agents –
or by third parties- which is attributable to it, with the respective legal
consequences. But it is also true that each of these acts of acquiescence has its own
character and carries with it necessary effects, which it is indispensable to note and
evaluate, even when none of these, to our knowledge, carries with it a definitive
conclusion to the proceedings and the establishment of an “official” version with
regard to the events and the validity of the allegations. Both of these are determined
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos