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stated in my Concurring Opinion. And, in what refers to its contentious function, with
its two historical Judgments, in jurisdictional subjects, in the cases of the
Constitutional Tribunal and of Ivcher Bronstein versus Peru (both of 09.24.1999),
which are currently acclaimed as a great contribution to the international
jurisprudence in the sense of preservation of integrity and strengthening of the
same.
13.
The few differing and reactionary voices that still insist on maintaining a
willing position on the subject, 4 more attentive and open to the State’s unilateralism
(including the pretension to withdraw the state’s acceptance of the competence of
the Court with “immediate effects”) than to the imperatives of international
jurisdiction, forget the special nature of the human rights treaties; forget the
thousands and thousands of victims of the repressive regimen established in the
State accused at this time; forget that the credibility and integrity themselves of the
Court were at stake; forget that the international jurisdiction was the last hope of the
defendants that were completely helpless; forget the imperative of access to justice
(belonging, from my point of view, to the domain of the jus cogens). If the Court had
followed a willing and strictly formalistic vision of the applicable law, maybe it would
no longer exist.
14.
Fortunately, when facing the largest crisis it has faced in all its history up to
now, the Court made a firm and correct use of the powers inherent to its jurisdiction,
and its two mentioned avant-garde Judgments of 09.24.1999 are a framework for
contemporary international jurisprudence in matters of international protection of
human rights, as internationally acknowledged. Another notable example of the use
of the powers inherent to its jurisdiction can be found in its Judgment of 11.28.2003
in the case of Baena Ricardo et al. versus Panama, in which it held with the same
firmness its inherent power to supervise the execution or faithful compliance of its
own judgments. Thus, in the present case of Servellón García et al. versus Honduras,
the Court could have been more explicit in what refers to the power inherent to its
jurisdiction of having made a more deep examination of the context of the cas
d'espèce.
15.
Even so, the Court duly took into account the context of the present case. As
stated in this Judgment, the State acknowledged the existence of the “phenomena of
violent deaths of underage children,” but it denied that it was “a policy of ‘social
prophylaxis’.” (para. 106). The Court correctly affirmed that
“International responsibility may also be attributed even in the absence of
intention, and the acts that violate the Convention are the State’s responsibility
regardless of the fact that they are or not a consequence of a deliberate state policy.”
(para. 107)
16.
That is, the Court, in the exercise of a power inherent to its jurisdiction,
determined the State’s objective international responsibility (supra). The Court
stated that, in the origin of the configuration of the State’s international
responsibility, the latter proceeded to a programmed and collective arrest of 128
persons, “without an arrest warrant and without having been arrested in a crime
detected in the act,” arrest carried out “with the declared purpose of avoiding
disturbances during the parades that would be held to celebrate the National
Independence Day.” (para. 91) In the Court’s assessment, and pursuant to its
.
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Including, to my astonishment and regret, those of four Latin American authors.