the obligation to contribute, in a Concurring Opinion (paras. 1-32), with what the
Court preferred to abstain from doing. I focused my reflections on three aspects, to
which I attributed special importance, specifically: a) the delimitation, demarcation,
titling, and handing over of land as a form of reparation (non-pecuniary); b) the
guarantee of the voluntary and sustainable return (of the members displaced from the
Community); and c) the need to rebuild and preserve the cultural identity.42 In that
case of the Moiwana Community, as in the present case of the Castro Castro Prison, I
have stayed loyal, - as during the totality of my term as Full Judge of the InterAmerican Court, - to my conception of the fundamental role of an international human
rights court, which is not exhausted with “solving” a controversy submitted to its
knowledge, but instead also requires that it indicate which is the Law.
IX.
The Primacy of Law in Any Circumstance, including the Fight
against Terrorism.
68.
In recent years, the cases of violations to human rights in the middle of a
chronic state of generalized violence have generated difficulties that exceed the purely
conceptual level, and extend to the scope itself of the applicable law and the
determination of those entitled to the right to reparation. Therefore, I consider it
completely appropriate to dedicate the following considerations of the present
Concurring Opinion to the different aspects of the primacy of law even in
circumstances of chronic violence, even in the so-called fight against terrorism. The
matter occupies a fundamental position in the present Interpretation of the Judgment
in the case of the Castro Castro Prison.
1.
The Victims of Massacres.
69.
The cases of massacres that currently reach the international human rights
courts (Inter-American and European Courts) have generated great difficulties –
maybe perplexities – for those who study not only Law (v.g., the determination of the
victims for the effect of reparations) but also for social sciences in general. In
principle, the phenomenon of massacres defies all intent of comprehension: it does
not seem to have any sense or purpose, it is deeply disturbing, it seems to be the
product of human insanity and cruelty.
70.
Additionally, it does not obey any intent of “general theory”: each massacre –
extermination of non-combatants, - between men and women, children and the
elderly, - in general completely defenseless has been perpetrated within a different
specific historic, political, and cultural context.43 It would be difficult to submit said
phenomenon to any intent of generalization.
71.
On the other hand, the instigators and perpetrators of the massacres
systematically try to characterize the victims as “enemies” that must be eliminated or
exterminated, even when they are innocent and defenseless, - they try, in synthesis,
to dehumanize them before killing them.44 With this, they seek to “protect
.
42
Text of my referred Concurring Opinion, reproduced in ibid., pp. 683-693.
.
J. Sémelin, "Analysing Massacres and Genocide: Contribution of the Social
Sciences", in: [Various Authors,] Violence and Its Causes: A Stocktaking, Paris,
UNESCO, 2005, pp. 63-65, and cf. p. 62 y 67.
43
.
44
For a personal dramatic account, cf. Primo Levi, The Drowned and the Saved,