3
Temptation of Christ ", regarding Chile (Judgment of 02.05.2001), in which I allowed
myself to present, in my Concurring Opinion, the grounds for objective or absolute
responsibility in the legal international doctrine. But not all the cases of violations of
human rights are based on an objective international responsibility.
9.
In my aforementioned General Course of 2005 in the Academy of
International Law of La Haya, I observed that, next to said grounds for international
responsibility, there are also cases of violations to human rights in which the guilt
(offense), and even the dolus (when the intention is proven), are present, thus
arising the aggravated international responsibility. 3 We can recall, as examples in
this last sense, the cases of Myrna Mack Chang versus Guatemala (Judgment of
11.25.2003), of the Massacre of Plan de Sánchez versus Guatemala (Judgment of
04.29.2004), of the 19 Tradesmen versus Colombia (Judgment of 07.05.2004), of
the Mapiripán Massacre versus Colombia (Judgment of 09.15.2005), of the Massacre
of the Moiwana Community versus Suriname (Judgment of 06.15.2005), of the
Ituango Massacre versus Colombia (Judgment of 07.01.2006), - in which the State’s
intent to commit gross violations of human rights, or its express negligence to avoid
them, were irrefutably proven.
10.
In these cases, the gross breaches were perpetrated in name of the State, as
a subject of International Law, and, also, in the same line of its criminal acts the
facts were covered, with its aggravated international responsibility deriving from all
this. In summary, and in conclusion regarding the present matter under
examination, in the current general theory on the State’s international responsibility,
there is still a coexistence between objective (or absolute) international responsibility
and the State’s international responsibility based on guilt, and even on dolus
(aggravated).
II.
Foundations of the International Jurisdiction.
11.
I go on to the next point of my reasoning: In my Concurring Opinion in the
case of Blake versus Guatemala (merits, Judgment of 01.24.1998) I already allowed
myself to point out the grounds for international responsibility (conventional
obligations) and of international jurisdiction. The first is of material law, being the
second of a jurisdictional order. Although in the present case of Servellón García et
al. versus Honduras there were no problems of a jurisdictional order, there is room
here for one precision. When extending its examination of the case further on than
what was object of the acknowledgment of responsibility by the State, the Court –
without saying it – has exercised an inherent power to its jurisdiction. The Court
seems to not have noticed that the thesis of the inherent powers strengthens its
jurisdictional foundations.
12.
This has been irrefutably proven in its experience in recent years, in the
exercise of its functions, both advisory and contentious. With regard to the first, the
Court made use, in an exemplary manner, of its inherent powers in its Advisory
Opinion n. 15, on Reports of the Inter-American Commission on Human Rights
(Article 51 of the American Convention on Human Rights – of 11.14.1997), as I
3
.
A.A. Cançado Trindade, "International Law for Humankind: Towards a New Jus Gentium - General
Course on Public International Law", Recueil des Cours de l'Académie de Droit International de la Haye
(2005) ch. XV (in press).