376. The representatives pointed out that the incidents had taken place with the
knowledge of the state, “in the context of a counter-subversive military operation planned and
executed by agents of the State, with the knowledge of the highest authorities.” The
representatives argued, in this regard, that even though the bodies had been removed the day
after the operation and the partial selective autopsies had been performed, no investigation
was launched to discover whether the use of firearms, and more specifically, the use of lethal
force, had been legal. They held, accordingly, that “the State was under obligation to initiate
an investigation to clear up the circumstances of the deaths” that occurred as a result of the
operation. The representatives emphasized that investigations had not been conducted ex
officio even after Hidetaka Ogura made his statements public. According to the
representatives, that was the moment when the State acquired a heightened obligation to
investigate, because allegations of extrajudicial executions were being made. The
representatives added that the investigations began only after January 2, 2001, when
APRODEH lodged a complaint about the matter in response to Ogura’s statements, that is,
nearly three years after the events had occurred. They therefore argued that the State was
responsible for having failed to begin on its own initiative to conduct a conscientious, effective
investigation into the reported executions of the alleged victims once it had become aware
that they had died as a result of the use of force by agents of the state.
377. The State maintained that it had fulfilled its obligation to investigate the way lethal
force had been used by its officials and pointed out that if, as a consequence of these
investigations, the State had found that the death of the MRTA fighters had taken place outside
the bounds of reasonable and proportional use of force, then investigations would have begun
in the interest of clearing up what could have been considered an extrajudicial execution, but
that this was not the case. The State explained that the conduct of this first investigation
should be distinguished from any differences of opinion or questions about its outcome that
had arisen since late 2000 and early 2001, owing to the statements by Hidetaka Ogura, and
regarding which the State had also proceeded immediately with an investigation by the public
prosecutor specifically to examine the alleged extrajudicial executions. The State held that
“any claimed discrepancies, questions or shortcomings as to how the investigations had been
conducted upon completion of the [military operation] cannot in and of themselves prove State
responsibility.”
378. The State added that “the time to begin examining whether the State fulfilled its
obligations to investigate facts considered to be in violation of the [American Convention]
should properly be when the State becomes aware of such facts, but not some time years later
when someone begins to speculate that such violations may have been committed.” The State
invited the Court to “fully assess all the actions the State of Peru had undertaken since 2001
as an immediate response to the complaints brought before the public prosecutor concerning
alleged extrajudicial executions of [the three alleged victims].”
Considerations of the Court
379. When accusations are made that extrajudicial executions have occurred, it is essential
that States conduct an effective investigation into the violation of the right to life recognized
in Article 4 of the Convention and determine the responsibilities of all the perpetrators and
participants, especially when State agents are involved. 443.
380. The Court has also held that the obligation to investigate does not derive solely from
treaty-based provisions of international law binding upon the States Parties, but also from the
Cf. Case of Myrna Mack Chang v. Guatemala, supra, para. 156, y Case of the Massacres of El Mozote and
surrounding areas v. El Salvador, supra, para. 243.
443