29
defence, not only individual but [also] of the whole society”. As such, the State invoked the
Criminal Code of the National Police in force at that time, which establishes in its Article 21 the
circumstances in which police or the Public Forces members would be exempted of responsibility.
Furthermore, the State alleged that the Commission “refers to the [United Nations] Code of
Conduct for Law Enforcement Officials [sic] […] and to the Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials [sic] [… and that] both foresee the exception of selfdefence”; and that Article 51 of “the Charter of the United Nations recognizes and reaffirms the
right to use military force in self-defence”. Similarly, the State invoked Articles 22 and 29 of the
Charter of the OAS.
100. However, in its final oral arguments the State declared that “the said self-defence could be
assumed on the grounds of the autopsies” of the three alleged victims and the alleged gunshot
received by a state agent, since there is no judicial decision which specifies the circumstances of
the death of the three alleged victims. Then, in its final written arguments, the State asserted that
“two clear possibilities [were to be considered]: the configuration of either an extrajudicial
execution or acts of self-defense”. Moreover, the State alleged that in order to be qualified as an
extrajudicial execution, the death of an individual must be deliberate and unjustified, which has not
been proven by the representatives or by the Commission, and therefore a reasonable doubt over
what happened remains.
101. As mentioned, in this case Mr. Zambrano Vélez, Mr. Caicedo Cobeña and Mr. Caicedo
Cobeña were deprived of their lives by state agents that made use of lethal force, in the framework
of a security operation and in the exercise of their functions. Effectively, the United Nations Code of
Conduct for Law Enforcement Officials and the United Nations Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials both prohibit the use of firearms, “except when a
suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less
extreme measures are not sufficient to restrain or apprehend the suspected offender” and “except
in self-defence or defence of others [… or] to arrest a person presenting [imminent threat of death
or serious injury] and resisting their authority, or to prevent his or her escape, and only when less
extreme means are insufficient to achieve these objectives.”85 In the instant case, it has not been
demonstrated that those persons were deprived of their life in any of those exceptional situations.
102. Moreover, regarding the State’s plea concerning Article 51 of the Charter of the United
Nations and Articles 22 and 29 of the Charter of the OAS (supra para. 99), it is important to clarify
that this concept of “self-defence” found within these instruments refers to a State’s power which is
limited in scope and which is recognized by International Law as an exception to the general
prohibition of war and the use of force, in order to maintain international peace and security. This
understanding of “self-defence” would not apply, in any way, to the determination by this Court of
the international responsibility of the State under the American Convention for acts or omissions by
state agents in a security operation.
103. Furthermore, this Court has held that Article 1(1) is fundamental for deciding whether a
violation of the human rights recognized in the Convention may be attributed to the State Party to
its full extent. Thus, any violation of human rights enshrined in the Convention that can be
attributed to acts or omissions by any public authority, according to the rules of International Law,
constitutes a fact attributable to the State which compromises its international responsibility in the
terms set forth in the said Convention and according to general International Law. It is a principle
85
Cf. Code of Conduct for Law Enforcement Officials adopted by the United Nations General Assembly, Resolution
34/169 of December 17, 1979, Article 3; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,
adopted by the Eight Congress of the Unites Nations for the Prevention of Crime and the Treatment of Criminals, Havana,
Cuba, August 27 - September 7 1990, Principle 9.