34
Salvador has never undervalued the exercise of human rights in grave
situations of conflict”;
c)
In 1982, the year in which the facts allegedly occurred, the State did
not have a practice of disappearing children; on the contrary, it applied
international humanitarian law. The alleged facts occurred in a “combat
zone,” where there were confrontations between two bands in which the
civilian population participated and during which many minors were
abandoned and found by the opposite side. The Army used to hand the
children who were “orphans or separated from their families” to the
Salvadoran Red Cross or to the International Committee of the Red Cross for
their care and protection. The State’s action “responded to what was
appropriate and established under the applicable lex specialis,” which was
international humanitarian law. If the Army did intervened and “picked up the
two abandoned minors” and handed them to the Salvadoran Red Cross or the
ICRC, “the Army’s conduct […] can only be examined with reference to the
law applicable during non international armed conflicts and not, by inference,
in the terms of the American Convention.” “The population in the Department
of Chalatenango, in the zone known by the guerrilla as the Modesto Ramírez
Central Front […], was involved with the guerrilla in 1982, either temporarily
ceasing to be civilian population or as combatants. In the case of the Serrano
Cruz family […] one of its sons was a member of the Front and the family
belonged to the ‘masses’”;
d)
The Court’s jurisdiction to interpret human rights treaties “cannot be
extended to humanitarian law treaties”, so that if “the Court hears the case, it
would be interpreting the pertinent articles of the 1977 Protocol additional to
the Geneva Conventions of 12 August 1949 relating to the protection of
victims of non-international armed conflicts”;
e)
“Unlike the Las Palmeras case, in which the Commission persuaded the
Court to rule on violations of humanitarian law, the instant case refers to facts
that, per se, correspond to the area of international humanitarian law.”
Bearing in mind the Court’s ruling in that case, the Court does not have
jurisdiction to determine the compatibility of State acts or laws with the 1949
Geneva Conventions; and
f)
The facts of this case “should be examined in accordance with the
applicable lex specialis, which is international humanitarian law, and this is
outside the Court’s jurisdiction.” The Court should declare itself incompetent
“to rule on the violations of humanitarian law alleged by the Inter-American
Commission or the representatives of the alleged victims.”
Arguments of the Commission
109. The Inter-American Commission indicated that the Court is “fully competent
to hear and decide on the matter of the instant case,” which calls for the application
of the American Convention, ratified by El Salvador on June 23, 1978. It argued
that:
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