19
63.
In these circumstances, ensuring that justice is done, so as to end impunity,
is an important form of reparation. In this regard, in my separate opinion in Bulacio
v. Argentina (Judgment of September 18, 2003), I stated that law reacts in the face
of the extreme violence with which human beings treat each other, since this is
unacceptable. I reflected that:
“It is here that the Law intervenes, to halt the cruelty with which human beings
treat their fellow men or women […] to affirm its own prevalence over brute force, to
attempt to organize human relations on the basis of recta ratio (natural law), to mitigate
human suffering, and thus make life less unbearable, or perhaps bearable –
understanding that life with suffering, and solidarity, is preferable to non-existence […]
This explains the importance of the realization of justice. The juridical order
(both domestic and international) sets itself up to oppose violent acts that breach
human rights, to ensure that justice prevails and, thus, to provide satisfaction to the
direct and indirect victims. In his work on L'Ordinamento Giuridico, originally published
in 1918, the Italian philosopher of the Law, Santi Romano, argued that punishment is
not attached to specific juridical provisions, but rather is inherent to the juridical order
as a whole, operating as an “effective safeguard” of all subjective rights protected by
said order.66 […]
The Law, issuing from and moved by human awareness, provides reparatio
(from the Latin reparare, “to dispose once again”); it also intervenes to avoid repetition
of the wrong, in other words, to establish, as one of the non-pecuniary forms of
reparation of damage resulting from violations of human rights, the guarantee of nonrecidivism of the injurious acts. […]
Reparatio does not end what happened, the violation of human rights. The
wrong was already committed;67 reparatio avoids a worsening of its consequences (due
to indifference of the social milieu, due to impunity, due to oblivion). From this
perspective, reparatio takes on a dual meaning: it provides satisfaction (as a form of
reparation) to the victims, or to their next of kin, whose rights have been abridged,
while also reestablishing the legal order weakened by said violations –a legal order
erected on the basis of full respect for the inherent rights of the human person.68 The
legal order, thus reestablished, requires guarantees of non-recidivism of the injurious
facts. Reparatio disposes once again, reestablishes order in the lives of the surviving
victims, but cannot eliminate the pain that is inevitably incorporated into their daily
existence. The loss is, from this angle, strictly irreparable. Even so, reparatio is an
unavoidable duty of those responsible for rendering justice. In a stage of greater
development of human awareness, and therefore of the Law itself, undoubtedly the
realization of justice overcomes any and every obstacle, even those derived from the
abusive exercise of rules or precepts of substantive law […]. Reparatio is a reaction, in
the field of the Law, to human cruelty, expressed in various ways: violence in dealing
with other human beings, impunity of those responsible with respect to the public
authorities, indifference and oblivion in the social milieu.
This reaction of the legal order breached (the substratum of which is precisely
respect for human rights) is ultimately moved by the spirit of human solidarity.[…]
Reparation, thus understood - providing satisfaction to the victims (or their next of kin)
and guarantees of non-recidivism of the injurious facts, in the framework of the
realization of justice - is undeniably important. Rejection of indifference and oblivion,
and guarantees of non-recidivism of the violations, are expressions of solidarity between
the victims and the potential victims, in the violent world, empty of values, in which we
live. It is, ultimately, an eloquent expression of the ties of solidarity that link the living
to their deceased ones […]”69 (paras. 30, 33, 35 and 37-40).
66
.
Santi Romano, L'ordre juridique (trad. 2nd ed., reed.), Paris, Dalloz, 2002, p. 16.
67
.
Human capacity both to promote good and for evil has not ceased to attract the attention of human
reflection over the centuries; cf. F. Alberoni, Las Razones del Bien y del Mal, Mexico, Gedisa Edit., 1988, pp. 9196; A.-D. Sertillanges, Le problème du mal, Paris, Aubier, 1949, pp. 5-412.
68
.
As I had pointed out in my Separate Concurring Opinion the previous day, with regard to Advisory
Opinion No. 18 of the Inter-American Court on the Juridical Status and Rights of Undocumented Migrants (on
September 17, 2003, para. 89.
69
.
Regarding these ties of solidarity, see my Separate Opinions in the Bámaca Velásquez v. Guatemala
case (Judgments of the Inter-American Court on merits of November 25, 20002, and on reparations of
February 22, 2002).
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