11
Judgment of January 20, 1989. Series C. No. 5, para. 199; Aloeboetoe et al. Case,
Reparations, supra 40, para. 46; El Amparo Case, Reparations, supra 40, para. 16
and Caballero Delgado and Santana Case, Reparations, supra 40, para. 17). The
reparation may also be in the form of measures intended to prevent a recurrence of
the offending acts.
42.
Given the submissions filed by the victims’ families, it is important to point
out that the obligation contained in Article 63(1) of the Convention is governed by
international law in all of its aspects, such as, for example, its scope, characteristics,
beneficiaries, etc. Such was the Court’s finding in the Aloeboetoe et al Case
(Aloeboetoe et al. Case, Reparations, supra 40, para. 44), and repeated in
subsequent decisions (El Amparo Case, Reparations, supra 40, para. 15; Neira
Alegría et al. Case, Reparations, supra 40, para. 37; and Caballero Delgado and
Santana Case, Reparations, supra 40, para. 16).
43.
In certain passages of the submissions filed by the victims’ families, they seek
indemnification that would go beyond the realm of compensation for damages
caused, and into the punitive realm. At the January 20, 1998 hearing, for example,
the representative of the victims’ relatives demanded "exemplary damages." Such
functions are not in the nature of this Court and are not within its power. The InterAmerican Court is not a penal court and, in this particular matter, its competence is
to determine the reparations that States that have violated the Convention must
make. As the word suggests, reparation is achieved through measures that serve to
‘repair’ the effects of the violation committed. Their quality and their amount
depend on the damage done both at the material and at the moral levels.
Reparations are not meant to enrich or impoverish the victim or his heirs (Cf. del
ferrocarril de la bahía de Delagoa Case, LA FONTAINE, Pasicrisie internationale,
Berne, 1902, p. 406).
44.
In the cases against Honduras (Velásquez Rodríguez Case, Compensatory
Damages, supra 40, para. 38, and Godínez Cruz Case, Compensatory Damages,
supra 40, para. 36), the Court held that the expression "fair compensation" used in
Article 63(1) of the Convention is "compensatory and not punitive" and that
international law does not, at this time, use the principle of compensation "to deter
or to serve as an example." Also, in the Fairén Garbi and Solís Corrales Case, this
Court found that "the objective of international human rights law is not to punish
those individuals who are guilty of violations, but rather to protect the victims and to
provide for the reparation of damages" (Fairén Garbi and Solís Corrales Case,
Judgment of March 15, 1989. Series C No. 6, para 136). The Court finds no reason
to deviate from these precedents in the instant case.
45.
The Commission requested that the Court issue a finding regarding the
federal clause (Article 28 of the American Convention) and the scope of the
obligations of the Argentine State during the reparations phase under that clause
(supra 33). Argentina invoked the federal clause or made reference to the federal
structure of the State on three different occasions in this dispute. First, when the
merits of the matter were being examined, the State argued that, by virtue of the
federal clause, any responsibility in the instant case was imputable to the Province of
Mendoza, not to the State. Argentina then backed away from this argument and
expressly acknowledged its international responsibility at the hearing of February 1,
1996 (supra 16). The State invoked the federal clause a second time when
negotiating the May 31, 1996 reparations agreement. At the time, the Province of
Mendoza was party to the agreement, not the Argentine Republic, even though the