3
probative debate, and the statement by Lucrecia Hernández Mack that “the State,
that should protect them, killed her” was supported as irrefutable truth.
On February 24, 2003, the Ministry of Foreign Affairs of Guatemala stated, in
a brief addressed to the Court, the “true scope of the acceptance of Guatemala’s
liability” in the Mack Chang case. In regards to the matter, he stated: “the order I
gave (to the State agent), was to simply accept the facts set forth in the application
and, in accordance with the general principle stated in Article 52 of the Rules of
Procedure of the Court, inform to this court of law that Guatemala accepts
unconditionally its international liability in the case,” to conclude that “under these
special circumstances, I allow myself to request… the real intention of absolute
acquiescence by the Government of Guatemala, to be on record in the present
communication.”
III
The gravity of cases like this, where senior government officials charged as
abettors, by express orders of physically eliminating a given person on ideological
grounds, is not attenuated by internal conflicts, at a given moment, that might affect
a country. There are elementary constitutional, or international law or humanitarian
international law or ius cogens, rules proscribing, in absolute terms, extrajudicial
death. There is not a justification for an arbitrary death, even less when State
agents perpetrate it. Almost every country in the world has assumed in its political
constitution, and through international treaties, the obligation to respect the right to
life and the other fundamental rights of the human person and to create the legal
mechanisms and necessary guarantees for complying with said obligation. It is easy
to understand the feelings of pain and impotence of a person and his/her next of kin,
due to the maximum damage by the State that was supposed to protect them. It is
possible to understand the indignation of a daughter who relates her mother’s
murder in the hands of senior State officials and who is afraid that the crime will not
be punished as a result of abetting, tolerance, or inefficiency of the authorities of the
State in charge of administering justice.
The State recognized the application facts and, particularly, the facts referred
to by Lucrecia María Hernádez Mack, when stating her “real intention of absolute
acquiescence.” This acquiescence, stated very late after the evidence hearing, did
not have the effect of concluding the process on the merits. However, it can be
interpreted, beyond its court effects, as reparation for Myrna Mack Chang’s next of
kin for the violation to her right to life and the direct violations of the rights due to
hindering and obstruction of a proper administration of justice.
Besides its
interpretations as a reparation offered by the State, the acquiescence can become
highly relevant as a purpose and guarantee that the fact will not be repeated.
Even though it is true that this is not the only case in the American continent
of a violation of the right to life of a person by senior government officials, or due to
several extermination policies, the peculiarity of this process is that it has involved a
full acceptance of these facts by the State. It is suitable to repeat that this
acceptance can be understood as part of a process of reconciliation and a real
establishment of a law and guarantee system characteristic of a democracy. The
Court has stated repeatedly that democracy increasingly needs a bigger recognition
of human rights, and that the Rule of Law, democracy, and personal liberty are
consubstantial, particularly, with the protection regime set forth in the Convention. .
“In a democratic society –as stated by the Court- the rights and liberties of the
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