`(...) The State’s obligations require it to act diligently
and to achieve a given result, not merely to act in a given
manner (such as adopting insufficient and ineffective legislative
measures). Indeed, the examination of the difference between
obligations to act in a given manner and to achieve a given
result124 has, in general, been carried out under a theoretical
approach, assuming variations in the conduct of the State and
even a succession of acts by the latter,125 -without sufficiently
and duly considering a situation that suddenly causes
irreparable damage to a human being (v.g., deprivation of life
due to the State's lack of diligence).'
In other words, the obligations involved are to achieve a given result
and not merely to act in a given manner, because, otherwise, they
would not refer to compulsory laws and, in addition, they could result in
impunity." (paras. 5-7 and 9-12).
More recently, I insisted on this same aspect in my extensive Dissenting Opinion
(paras. 1-60) in the case of the Dismissed Congressional Employees versus Peru
(Judgment of Interpretation of 11.30.2007).
151. But it was in the case of Goiburú et al. versus Paraguay (Judgment of
09.22.2006), regarding the sinister “Condor Operation” of the so-called “intelligence
services” of the countries of the Southern Cone of South America (during the time of
the dictatorships of three decades ago), that the Court finally endorsed the thesis I
had been defending within ito for more than two years,126 by effectively expanding
even more the material content of the jus cogens, thus including the right to a fair
trial at national and international levels.127
.
Especially based on the work of the United Nations Human Rights Commission
on the International Responsibility of States.
124
.
Cf. A. Marchesi, Obblighi di Condotta e Obblighi di Risultato - Contributo allo
Studio degli Obblighi Internazionali, Milano, Giuffrè, 2003, pp. 50-55 and 128-135.
125
.
Cf. the text of my Concurring Opinion in this case, reproduced in: A.A. Cançado
Trindade, Derecho Internacional de los Derechos Humanos - Esencia y Trascendencia
(Votos en la Corte Interamericana de Derechos Humanos, 1991-2006), México, Edit.
Porrúa/Universidad Iberoamericana, 2007, pp. 779-804.
126
.
In my Separate Opinions in the case of Goiburú et al. (paras. 62-68, text in
ibid., pp. 801-804), as well as in the following cases of Almonacid Arellano versus
Chile (Judgment of 09.26.2006, paras. 58-60 of the Opinion), and of La Cantuta
versus Peru (Judgment of 11.29.2006, paras. 49-62 and 58-60 of the Opinion), I
made emphasis on the considerable importance of said expression of the material
content of the jus cogens. Cf. also in this regard, A.A. Cançado Trindade, "La
Ampliación del Contenido Material del Jus Cogens", in XXXIII Curso de Derecho
Internacional Organizado por el Comité Jurídico Interamericano - 2007, Washington
D.C., General Secretariat of the OAS, 2008 (in press). – In my Concurring Opinion in
the case of Almonacid et al. versus Chile I sought to prove the lack of juridical validity
of the so-called self-amnesties, not compatible with the ACHR, since they generate
obstruction and denial of justice, and the resulting impunity of those responsible for
the atrocities. I insisted on the need to expand the material content of the prohibitions
of the jus cogens (in order to guarantee the right to a fair trial at both national and
international levels), and I placed, in the end, the definition of the crimes against
humanity in the crossing between International Human Rights Law and International
Criminal Law.
127