International Humanitarian Law and that of criminal law (domestic and international);
and the latter is directed toward the determination of individual criminal responsibility.
103. In successive Concurring and Separate Opinions I have presented in different
Judgments of this Court, I have defended the complementary nature (and even the
concomitant application of certain circumstances) of the corresponding regulations of
International Human Rights Law (IHRL), of International Humanitarian Law (IHL), and
International Refugee Law (IRL). Regarding this matter, I allow myself to make reference
to my Concurring Opinion in the case of Las Palmeras versus Colombia (preliminary
objections, Judgment of 02.04.2000), my Concurring Opinion in the case of Bámaca
Velásquez versus Guatemala (merits, Judgment of 11.25.2000), my Concurring Opinion
in the case of the Pueblo Indígena Kankuamo versus Colombia (Order of 07.05.2004), my
Concurring Opinion in the case of the Peace Community of San José de Apartadó versus
Colombia (Order of 03.15.2005), among others.
104. In the same line of reasoning, I have held, besides the need to promote the
complementary nature of the State’s international responsibility and the individual’s
international criminal responsibility, in order to reveal a necessary coming together of
International Human Rights Law and contemporary International Criminal Law.85 In this
sense I have issued my Concurring Opinion in the case of Myrna Mack Chang versus
Guatemala (Judgment of 09.18.2003), my Concurring Opinion in the case of the Plan de
Sánchez Massacre versus Guatemala (merits, Judgment of 04.20.2004), my Concurring
Opinion in the case of Goiburú et al. versus Paraguay (Judgment of 09.22.2006), my
Concurring Opinion in the case of Almonacid Arellano versus Chile (Judgment of
09.26.2006), among others.
105. That way, nobody is removed from the application of the Law, neither the victims
of the violations of their rights by State bodies or agents nor the victims of violations of
their rights due to terrorist acts. I do not see any impossibility or difficulty for the InterAmerican Court to clarify this matter in the preset Judgment of Interpretation in the case
of the Castro Castro Prison; it did not do it because it did not want to, but in my opinion it
should have. If it had done it, it would not be acting ultra vires, but instead complying
fully with its duty in the circumstances of the cas d'espère, duly clarifying the sense and
scope of its previous Judgment, on merits and reparations, of 11.25.2006, in the case of
the Castro Castro Prison.
106. In the present case, the appellant State was not the only one who requested the
interpretation of the Judgment; the attorneys of the victims (different to the
representative of the victims and the common intervener) also requested clarifications on
different matters. The Court clarified a request for interpretation, the latter, but in my
opinion, it did not, sufficiently or satisfactorily, clarify the issues presented in the State’s
request for interpretation.
107. In my opinion, if it had clarified all the matters presented to it in the present
process of Interpretation of Judgment, the Court would have contributed to strengthening
even the position of the victims in the present case of the Castro Castro Prison, within the
framework of the rule of law under the American Convention. It would have also clearly
solved the central issue presented in the State’s request, imbued of the acknowledgment
of the importance of reason and persuasion in its substantiation of the Judgment of
.
V.g., through the presence and participation of the victims in international
proceedings.
85
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