85.
They can, however, turn to human rights regulations to reinforce the legal
arguments within the framework of domestic criminal law, and even to seek the
application of the relevant rules of the human rights treaties binding to the State in
question within the realm of its domestic law. But if the terrorist acts included the
participation or connivance, or knowledge and negligence of the State in question, endowed with the legislative power in criminal matters, among other subjects, - promptly
compromising its own international responsibility, the corresponding regulations of
International Human Rights Law must be applied immediately for the determination of
the State’s responsibility.
86.
Besides this, since facts are richer than regulations and they require from the
latter a constant aggiornamento, even to offer greater protection to the victims of
violations of human rights, there are situations of a high complexity that require
clairvoyance, by the court or judge called upon to settle a dispute, in what refers to the
identification itself of the applicable law. An example can be found in the determination of
the possible effect of a human rights treaty with regard to third parties (the
Drittwirkung), - who could be the perpetrators of terrorist acts.
87.
The effect of international human rights regulations would occur, in said
circumstances, based on the theory of the positive obligations of protection by the State.
In the European protection system, this aspect has been developed, v.g., in the pioneer
monograph by the jurist from Luxembourg Dean Spielmann.65 In the Inter-American
protection system, the same matter has been developed in several of my Opinions within
this Court regarding the Drittwirkung.66 If the State does not assume its positive
obligations of protection, it becomes responsible for negligence or omission within the
international realm, ass well as criminally responsible as perpetrators of terrorist acts
within the realm of the domestic law.
88.
The State is responsible for the protection of every person under its jurisdiction,
for the safety of human beings, even against terrorist acts. It cannot, however, with this
.
D. Spielmann, L'effet potentiel de la Convention européenne..., op. cit. supra n.
(7), pp. 75-77, 79, 82-84 and 88, for the possibility to study the possible effect of the
European Convention on third parties in the light of the theory of the positive obligations
of protection.
65
.
V.g., in my Concurring Opinions in the Judgments of the Court in the cases of the
Mapiripán Masscare versus Colombia (of 09.15.2005) and of the Massacre of Pueblo Bello
versus Colombia (of 01.31.2006), as well as in my Concurring Opinions in the Orders of
the Court on Provisional Protection Measures in the cases of the Communities of
Jiguamiandó and Curbaradó versus Colombia (of 03.06.2003 and 03.15.2005), of Pueblo
Indígena Kankuamo versus Colombia (of 07.05.2004), of the Pueblo Indígena of
Sarayaku versus Ecuador (of 07.06.2004), of the Urso Branco Prison versus Brazil of
07.07.2004), of the `Globovisión' Television Station versus Venezuela (of the
09.04.2004), of the Peace Community of San José de Apartadó versus Colombia (of
03.15.2005); and, finally, also in my Concurring Opinions in the Court’s Orders on
Provisional Measures of Protection in the cases of the Mendoza Prisons versus Argentina
(of 0.3.30.2006), and of the Araraquara Penitentiary versus Brazil (of 09.30.2006). Cf.
the texts of my mentioned Opinions reproduced in: A.A. Cançado Trindade, Derecho
Internacional de los Derechos Humanos - Esencia y Trascendencia (Votos en la Corte
Interamericana de Derechos Humanos, 1991-2006), México, Edit. Porrúa/Universidad
Iberoamericana, 2007, pp. 595-613, 629-654, 891-929, 984-991, and 1002-1019.
66
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