3
in my opinion, be easily conceived in this sense, akin to “obligations to do” that are
both compensatory and punitive.5
9.
“Punitive damages," lato sensu (beyond the merely pecuniary meaning
inappropriately given to them) can be an appropriate response or reaction of the legal
order against particularly serious human rights violations. Thus understood, "punitive
damages" ―as stated in my Separate Opinion on the Case of Myrna Mack-Chang (para.
52) actually have already been applied, for a long time, in the domain of international
human rights protection― which makes us recall the phrase uttered by Molière’s
famous character, Monsieur Jourdain, qui parlait la prose sans le savoir...6
10.
Similarly, as I explained in my Separate Opinion on the Case of the Plan de
Sánchez Massacre (Reparations, 2004):
“Even if the reparations ordered in the instant Judgment by the
Court are referred to as ‘punitive damages’, (…) or as “exemplary
reparations” or “reparations exemplars,” or any other similar word, their
basic purpose is still the same: to recognize the extreme gravity of the
events, to punish the State responsible for the serious violations
incurred, to recognize the supreme sacrifice displayed by the dead
victims and relieve the efforts of the surviving ones, and they provide a
guarantee of non-repetition of those harmful events. Irrespective of the
words used to refer to them, their basic purpose is still the same and
they are imposed so as to revert to the benefit of the victims (direct and
indirect) and of the inhabitants of the State as a whole, since their aim is
precisely to re-build the affected social fabric” (para 25).
11.
In its Judgment on the Case of Mr. Gómez-Palomino, the Inter-American Court
ordered, by way of reparation and as a measure of satisfaction, the granting of
"education reparation measures" to the siblings of the victim or, if so desired, to their
sons and daughters, including study grants for primary, secondary and higher
education.7 The Court established a relation between those education reparation
development of legal scholars opinions, cf. G. Arangio-Ruiz, "Second Report on State Responsibility", in
United Nations, Yearbook of the International Law Commission (1989)-II, part I, pp 31-35, 40-43 and 4754.
5
.
Thus, the dichotomy between civil and criminal matters inherent to the liability scheme in
domestic law is overcome.
6
.
M. Jourdain: Il y a plus de quarante ans que je dis de la prose, sans que j'en susse rien, et je vous
suis le plus obligé du monde de m'avoir appris cela". Molière, Oeuvres Complètes (Le bourgeois gentilhomme,
1670, act II, scene V), Paris, Éd. Seuil, 1962, p. 515.
7
.
Paragraphs 145-148, and operating paragraph 11 of the Judgment.
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