15
44.
In 1958, Cuban jurist F.V. García Amador, who at the time was the ILC
rapporteur on Responsibility of the States, noted that certain forms of reparation have
a clear and distinctly punitive purpose (punitive damages/dommages-intérêts punitifs)
and involve imputing criminal responsibility to the State for violation of certain
international obligations –especially, grave violations of fundamental human rights,
analogous to crimes against humanity.54 Thus, the very “duty of providing reparation”
(with an initial civil law connotation) varies according to “the nature and function of the
reparation in specific cases;” reparation, thus, does not always have the same form or
the same purpose, and in the case of punitive damages (cf. infra) it contains a criminal
element of responsibility.55
45.
The whole chapter on reparations for human rights violations requires greater
conceptual and case-law development, based on recognition of the close relationship
between the right to reparations and the right to justice. Said development is
especially necessary in face of grave and systematic human rights violations, which in
turn require a firm reproval of the illicit conduct of the State, and dissuasive
reparations, to ensure non-recidivism of the injurious acts, taking into account both the
expectations of the next of kin of the victim and the higher interests or needs of the
society.
46.
In effect, one cannot deny the close link between reparations and combating
impunity, as well as ensuring non-recidivism of the injurious acts, always and
necessarily from the perspective of the victims. True reparatio, linked to realization of
justice, requires overcoming obstructions of the duty to investigate and to punish those
responsible, and putting an end to impunity. In other words, contrary to what the
Inter-American Court maintained in the past,56 it is my view that reparations can
perfectly well be both compensatory and punitive, with the aim of putting an end to
impunity and ensuring realization of justice –which is perfectly in accordance with the
current stage of development of international law.
47.
The provisions of Article 63(1) of the American Convention on Human Rights57
do in fact open a very broad horizon for the Inter-American Court of Human Rights in
the matter of reparations. Exemplarizing or dissuasive reparations, consistent with an
aggravated responsibility, may contribute to ensure non-recidivism of the injurious acts
and to the struggle against impunity. In my several years of experience as a Judge at
the Inter-American Court, I have been able to corroborate how the States have less
difficulty complying with pecuniary reparations than with reparations pertaining to the
duty to investigate and punish those responsible for human rights violations, in other
words, ultimately, the realization of justice.
48.
As stated in a Joint Separate Opinion in the Loayza Tamayo versus Peru case
(Reparations, Judgment of 27.11.1998), treatment given to measures of reparation in
54
.
F.V. García Amador, "State Responsibility - Some New Problems", 94 Recueil des Cours de
l'Académie de Droit International de La Haye (1958) pp. 396-398.
55
.
Ibid., p. 409.
.
In the judgments on “compensatory indemnification” (of 1989) in the Velásquez Rodríguez and
Godínez Cruz cases, cit. supra n. (47).
56
57
.
Article 63(1) de la American Convention provides that: “If the Court finds that there has been a
violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be
ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or freedom be
remedied and that fair compensation be paid to the injured party.”
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