52.
As regards the obligation to ensure rights, the Court has determined that this obligation refers
to the duty of the States to organize the entire government apparatus and, in general, all the structures through
which public authority is exercised, so that they are able to ensure by law the free and full exercise of human
rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the
rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation. 116
53.
Those obligations are also applicable in relation to possible acts by nonstate actors.
Specifically the Inter-American Court has held that “the State’s international responsibility may arise from
attribution to the State of human rights violations committed by third parties or individuals, within the
framework of the State’s obligations to guarantee respect for those rights between individuals, 117 [...] erga
omnes obligations to respect protective provisions and to ensure the effectiveness of the rights set forth therein
under any circumstances and regarding all persons. The effect of these obligations of the State goes beyond the
relationship between its agents and the persons under its jurisdiction, as it is also reflected in the positive
obligation of the State to take such steps as may be necessary to ensure effective protection of human rights in
relations amongst individual. 118 “These obligations devolve upon all subjects of international law and
presumptions of non-compliance must be determined in function of the need for protection in each particular
case.”119
54.
Specifically, regarding the duty to prevent violations, the court has said: “A State cannot be
responsible for all the human rights violations committed between individuals within its jurisdiction. Indeed,
the nature erga omnes of the treaty-based guarantee obligations of the States does not imply their unlimited
responsibility for all acts or deeds of individuals,120 because its obligations to adopt prevention and protection
measures for individuals in their relationships with each other are conditioned by (i) whether the State was
aware or should have been aware of a situation of risk, (ii) if that risk was real and imminent, and (iii) if the
State adopted measures that could reasonably have been expected to avert that risk. 121
55.
In short, insofar as establishing the international responsibility of the state is concerned, what
is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or
the acquiescence of the government, or whether the State has allowed the act to take place without taking
measures to prevent it or to punish those responsible. Thus, what is required is to determine whether the
violation is the result of a State's failure to fulfill its duty to respect and guarantee those rights, as required by
Article 1(1) of the Convention.122
2.
General considerations with regard to violence based on prejudice toward a person's
gender identity and gender expression
56.
The Commission has reiterated the link between discrimination and violence against LGBT
persons, referring to the concept of prejudice based on sexual orientation, 123 gender identity, or gender
I/A Court H.R., Case of Velásquez Rodríguez v. Honduras,Merits, Judgment of July 29, 1988. Series C No. 4, par. 166.
I/A Court H.R., Case of the Pueblo Bello Massacre, Judgment of January 31, 2006, Series C. No. 140. par. 113.
118 I/A Court H.R., Case of the "Mapiripán Massacre," Judgment of September 15, 2005, Series C. No. 134, par. 111.
119 I/A Court H.R., Case of the Pueblo Bello Massacre, par. 117.
120 I/A Court H.R., Case of the Pueblo Bello Massacre, par. 117.
121In several of its judgments, the Inter-American Court has relied on the jurisprudence of the European Court with respect to the aforesaid
elements of the duty to prevent violations. In that connection, see:I/A Court H.R., Case of the Pueblo Bello Massacres v. Colombia, Judgment
of January 31, 2006, Series C. No. 140, par. 124; I/A Court H.R. Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection,
Merits, Reparations and Costs, Judgment of November 16, 2009, Series C No. 205, par. 284; I/A Court H.R., Case of Luna López v. Honduras,
116
117
Merits, Reparations and Costs, Judgment of October 10, 2013. Series C. No. 269, par. 75. 124.
122 I/A Court H.R., Case of Velásquez Rodríguez v. Honduras,Merits, Judgment of July 29, 1988. Series C No. 4, par. 173.
123 The IACHR has said: “Crimes based on prejudice are rationalizations or justifications of negative reactions, for example, to nonnormative expressions of sexual orientation or gender identity.” In that connection, the Commission has considered that “the concepts of
prejudice and stereotype are linked” and that “hate crime” is another useful concept that has been developed to characterize violence
against LGBT persons. IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc.
36, November 12, 2015, pars. 41-44.