Happier, had it suffic'd him to have known
Good by it self, and Evil not at all."8.
8.
Everyone has experienced or become aware of some expression of the
violence that human beings carry within themselves. No one can deny the finite
nature of human beings, highlighted by a feeling of powerlessness in face of
brutality and injustice, and the suffering they entail, reflected in tragedy over the
centuries.9 In the age of the modern nation-State, abominable crimes have been
committed in the name of alleged “State security”, and citizens have been placed in
the most pitiless human insecurity. State security (originally conceived for the
realization of the common weal) and that of the human person have not gone hand
in hand; quite the contrary, the former has often been invoked as a pretext to
unduly restrict the latter. The facts in the instant case eloquently show this
historical distortion.
9.
In the instant Judgment in the case of the Gómez Paquiyauri Brothers, the
Court has, in short, found that one of the proven facts is that
"At the morgue the bodies of Rafael Samuel and Emilio Moisés Gómez
Paquiyauri were full of blood and dirt, wet, dirty; there was encephalic mass on their
hair, and one of Emilio’s fingers was missing. In both of them, the eyes were missing”
(para. 67(j)).
10.
Working for human rights, then, entails sharing the deepest human
suffering, being in contact with the evil within each person since the fall of the first
two human beings in Eden. Working effectively for human rights, with concrete
results, is to once again find the good that is also within each person, and to help
attain redemption through the realization of justice. The first step, on the difficult
path in search of justice, is to identify the origin of the responsibility of the State,
that is, to establish how said responsibility arises.
II.
the State
Establishment of the Emergence of the International Responsibility of
11.
At the outset, I must point out that inclusion in the instant Judgment of the
Inter-American Court, of a chapter (VIII) on the International Responsibility of the
State, as it has been addressed in the respective adjudicatory proceeding, evinces
the need to take general international law and the general principles of
international law into account, together with the provisions of the American
Convention on Human Rights, when applying a treaty such as the latter. In point of
fact, the general theory of exhaustion of domestic remedies, in international law,
has for a long time had to address precisely the aforementioned issue of the
establishment of the moment of emergence of the international responsibility of the
State.
12.
As I pointed out in a study on the subject, published in Geneva in 1978, over
the last decades attempts to codify the matter, international jurisprudence,
international doctrine and international practice have demonstrated a clear division
between two theses, the substantive and the procedural ones (according to which
State responsibility is, or is not, respectively, contingent upon reparations in
domestic law). Combinations of these two theses, and of other explanatory theories
(such as that of complex international wrongdoing, of dédoublement fonctionnel, of
8
9
.
Ibid., book X, verses 84-89.
.
See W. Kaufmann, Tragedy and Philosophy, 2d. ed., Princeton/N.J., Princeton University Press,
1992, pp. 131, 133, 309 and 315.
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