DISSENTING OPINION OF JUDGE NIETO-NAVIA
Although it has not proved that those responsible acted under official orders or that
this was a practice of the Colombian Army and, whereas, from the record one can
deduce the opposite (apparently those kidnapping the victims were dressed as
guerrillas, although the difference between a military and a guerrilla uniform is not
clear; and Captain Forero-Quintero was treated for several months in a military
hospital for paranoia resulting from psychological trauma caused by the
assassination at the hands of the guerrillas of several members of his troop while
they were building a highway), the Court has not found it inappropriate to infer that
the death and disappearance of Isidro Caballero-Delgado and María del Carmen
Santana occurred at the hands of a paramilitary group in collusion with an official
and a sub-official of the Army. The undersigned judge understands that, according
to modern trends in international law, this could constitute an act of the State,
which is not excused by the circumstance that those involved could have acted
under their own initiative.
The criminal judge who investigated those implicated absolved them because the
evidence used to charge them was weak and circumstantial. That judgment, which
is a model of analysis, makes one think that, perhaps, condemning the accused
would have violated the procedural rights and presumption of innocence required
by Colombian law and the Convention. Except for testimony from the same
individuals, which did not always coincide with their initial testimony, and the
testimony of Gonzalo Arias-Alturo, which also does not agree with his earlier
statements, this Court did not have additional evidence beyond that which was
considered by that judge.
However, here, as the Court has stated (Velásquez Rodríguez Case, Judgment of
July 29, 1988. Series C No. 4, paras. 134 and 135; Godínez Cruz Case, Judgment
of January 20, 1989. Series C No. 5, paras. 140 and 141), we are dealing with the
assumption of international State responsibility for violation of the Convention and
not a case of criminal responsibility. Consequently, what must be analyzed is not
whether Isidro Caballero-Delgado and María del Carmen Santana were killed under
the circumstances accepted as a working hypothesis by the Court, which would
produce criminal responsibility in those implicated, but whether Colombia has
violated the Convention. That is to say, whether conditions exist under which an
act which violates a right recognized in the Convention can be attributed or imputed
to that State, thereby establishing its international responsibility. (Ibid. para. 160
and para. 169, respectively.) In paragraph 60, the Court cites Advisory Opinion OC14/94 which fully confirms what I say here. (International Responsibility for the
Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2
of the American Convention on Human Rights), Advisory Opinion OC-14/94 of
December 9, 1994. Series A No. 14, para. 56.)
In an earlier case, the Court stated that
Article 1(1) is essential in determining whether a violation of the human
rights recognized by the Convention can be imputed to a State Party. In
effect, that article charges the States Parties with the fundamental duty to
respect and ensure the rights recognized in the Convention. Any impairment
of those rights, which can be attributed under the rules of international law
to the action or omission of any public authority constitutes an act imputable
to the State, which assumes responsibility in the terms provided by the
Convention. (Velásquez Rodríguez Case, para. 164 and Godínez Cruz Case,
para. 173.)