5
the present Resolution, its criterion to the effect that the Provisional Measures under
Article 63(2) of the American Convention can protect the members of a collectivity or
persons linked to it, who, however unnamed, are identificable20. We face, as the Court
points out, an erga omnes obligation of protection, on the part of the State, of all
persons under its jurisdiction21. Such obligation grows in importance in a situation of
armed conflict, as the present case encompassing a Community of Peace, that of San
José of Apartadó. This is, in my view, a case which requires clearly the recognition of
the effects of the American Convention vis-à-vis third parties (the Drittwirkung),
without which the conventional obligations of protection would be reduced to little more
than dead letter.
15.
The reasoning as from the thesis of the objective responsibility of the State is, in
my view, ineluctable, particularly in a case of provisional measures of protection as the
present. It is here intended to avoid irreparable harms to the members of a
community, and to the persons who render services to this latter, in a situation of
extreme gravity and urgency, which encompasses22 actions, armed and others, of
paramilitary and clandestine groups, along with the actions of organs and agents of the
public forces.
16.
It ought not to pass unnoticed, in this respect, that the obligations which the
American Convention imposes upon the States Parties coincide to a large extent with
those of International Humanitarian Law, which determines the obligation of the State
to protect its civil population in an (internal) armed conflict. In this, as in various other
cases, the Inter-American Court has kept in mind the norms of International
Humanitarian Law, as element of interpretation of the relevant provisions of the
American Convention, for the effects of their application in the circumstances of the cas
d'espèce.
17.
And it could not be otherwise; the propriety and the necessity of this
hermeneutics become even more evident in a case like that of the Community of Peace
of San José of Apartadó, in which the very selfdenomination of Community referred to,
and the proclamation of its "neutrality", reveal the presence and relevance of the
International Humanitarian Law, in a country torn by a grave internal armed conflict
which victimizes growing segments of its population. In face of this tragedy, what I
have allowed myself to call the "approximations and convergences"
between
International Humanitarian Law and the International Law of Human
Rights become evident23, as far as the application of the norms of the American
Convention on Human Rights is concerned.
20
Considerandum n. 8 of the present Resolution.
21
Considerandum n. 11 of the present Resolution.
.
.
22
.
As it can be inferred from the briefs submitted to the Court, and from the pleadings formulated by
the State of Colombia and by the Inter-American Court of Human Rights in the aforementioned public hearing
of 13.06.2002, pertaining to the present case.
23
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, Porto
Alegre/Brazil, S.A. Fabris Ed., 1997, chapter VIII, pp. 269-352; A.A. Cançado Trindade, El Derecho
Internacional de los Derechos Humanos en el Siglo XXI, Santiago, Editorial Jurídica de Chile, 2001, chapter V,
pp. 183-265.