14.
As illustrated supra, the judgment of the Inter-American Court
attributes responsibility to the State for the enforced disappearance of Mr. Fredy
Núñez Naranjo on the grounds that the victim's kidnapping occurred while he was
under state custody, that is, it holds the Ecuadorian State accountable in its
capacity as guarantor. While we share this perspective, we believe that the
judgment should have also examined the State's responsibility in terms of its
authorization, support, or acquiescence towards the conduct of non-state actors
who are part of the factual framework of the instant case.
15.
As a basic principle recognized by the International Community, the
international responsibility of the State is primarily generated as a result of acts
or omissions by any state power, body, or agent, regardless of their hierarchy,
that violate international obligations. 14 As established by the Court in its case law,
this principle is applicable to international obligations in the field of human rights.
16.
States can also be internationally responsible for acts committed by
individuals. As established by the Court in its case law, an illegal act that violates
human rights and which is initially not directly attributable to a State "because it
is the act of a private person or because the person responsible has not been
identified, can lead to the international responsibility of the State, not because of
the act itself, but because of the lack of due diligence to prevent the violation or
to respond to it as required by the Convention." 15 Likewise, the Court has
consistently ruled on the direct state responsibility for acts of third parties in cases
where private groups act with state recognition or support, in many cases as aid
or extension de facto of the authority of the Public Force in part of the national
territory. Historically, these dynamics have been observed in contexts of armed
actors or organized crime operating at various scales in sectors of the national
territory with little presence of the police or Armed Forces. 16
17.
In the instant case, the main line of investigation on the enforced
disappearance of Fredy Núñez Naranjo is related to the actions of the Peasant
Defense Boards in Quero Canton. These organizations are governed by the
"Statutes of the Provincial Federation of Peasant Defense Boards of Tungurahua,"
approved on October 10, 1966, by the then interim president of Ecuador,
Clemente Yerovi Indabaruru. The document states that the Defense Boards "will
concer[n] themselves solely and exclusively with the defense of private
property reconciled with its social function and the rights and interests of the
peasants who form or belong to the different Peasant Boards associated with the
Federation.” 17 It is worth mentioning that the law authorizes the existence of
groups for the defense of private property, with state-granted legitimacy, since
the Statute creating the Boards was the result of an Executive Agreement
executed by an interim President, which has remained in effect dating back to
1966.
14
UN General Assembly, Res.56.83 Responsibility of States for Internationally Wrongful Acts, sp (2002),
Article 4.
15
Cf. Case of the 19 Merchants v. Colombia. Merits, Reparations, and Costs. Judgment of July 5, 2004.
Series C No. 109, paras. 140-141.
16
Cf. Case of the 19 Merchants v. Colombia. supra paras. 118 and 124. See also Case of Isaza
Uribe et al. v. Colombia. Merits, Reparations, and Costs. Judgment of November 20, 2018. Series C No. 363,
para. 141.
17
Art. 2 of the Statutes of the Provincial Federation of the Peasantry Defense Boards of Tungurahua.
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