5
there are three elements in torture that are uncontentious and that constitute,
consequently, jus cogens: (i) infliction, by act or omission, of severe pain or
suffering, whether physical or mental; (ii) the intentional nature of the act, and (iii)
the motive or purpose of the act to reach a certain goal.19 On the other hand, there
are three elements that remain in contention and, thus, do not form part of jus
cogens: (i) the list of purposes for which the act is committed; (ii) the requirement
that the act be inflicted in connection with an armed conflict, and (iii) the
requirement that the act be inflicted by or at the instigation of or with the consent
and acquiescence of a state official.20
16.
This reasoning leads me to maintain that the Court is not obliged to be guided
by or apply either the definition of torture in the CIPST or that of the Convention
against Torture; rather it should allow the concept of jus cogens to prevail, because
this establishes the best protection for the victims of torture. I also recall that Article
16 of the CIPST establishes that this Convention “shall not limit the provisions of the
American Convention on Human Rights, other Conventions on the subject, or the
Statutes of the Inter-American Commission on Human Rights, with respect to the
crime of torture,” so that interpreting torture in a manner that differs from that
Convention does not constitute non-compliance with it but, to the contrary, its true
application.
17.
If the Court has independence to define torture and, thus, does not need to
incorporate the participation, by act or omission, of a public official as an element of
the concept of torture (and does not need to interpret the concept of acquiescence
in its narrowest sense, because in this case – basing myself on the facts – I maintain
that using the concept of acquiescence of the Committee against Torture, the State
acquiesced), the only problem that must be examined is whether the State can be
attributed with the fact that it has not complied with its obligation to safeguard the
personal integrity of the victims from the possibility of torture. I need not repeat
what the Court has stated in numerous judgments and reiterates in this: that the
obligation to guarantee requires the duty to prevent.
18.
The Judgment in this case establishes two moments at which the State failed
to comply fully with this obligation. The first was before the disappearance of the
victims and does not refer to the obligation to prevent the three victims from being
abducted; that would be disproportionate. What could be claimed is that, as soon as
the State was officially (not to mention unofficially) aware, in other words, at least
as of the moment at which the National Human Rights Commission officially alerted
it to the existence of a pattern of violence against women in Ciudad Juárez, there
was an absence of policies designed to try and revert the situation.
19.
The second moment, which is the one that interests me for the purposes of
this opinion, is the lapse between the time the three victims disappeared and the
State’s response to their disappearance; which was, according to the Judgment,
extremely belated and even today insufficient. In paragraph 283 of the Judgment,
the Court recognizes that the State “was aware that there was a real and imminent
risk that the victims would be sexually abused, subjected to ill-treatment and killed,”
and that, consequently, it “finds that, in this context, an obligation of strict due
diligence arises in regard to reports of missing women, with respect to search
operations during the first hours and days.”
19
Cf. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, supra note 14, para.
483.
20
484.
Cf. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, supra note 14, para.
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