33.
The individuals not only take the initiative of triggering implementation of
the international responsibility of the State that committed the violation, but also
express their understanding of the very basis for said international responsibility.
Individuals thus contribute to evolution and humanization of international law, both
with respect to conventions and general law. They are not only subjects of
international law,33 but also participants in the process of its constitution and
evolution. This is a feature of the new jus gentium, at the start of the 21st century.
34.
Consideration of the case of the Gómez Paquiyauri Brothers should not
disregard a final, equally significant aspect that I must record in this Separate
Opinion. Even though they happened 13 years ago, in mid-1991, the facts in the
instant case are still indelibly engraved, with the branding mark of human brutality,
in the memory of the next of kin of the victims. In her testimony before this Court,
the sister of the two murdered boys said that she “loved [her] brothers,” that “not
a day passes in [her] life that [she] does not remember them, not a day in [her]
life that they are not present” in her memory (see supra).
35.
The image of the cruelty that surrounded the murder of the brothers Rafael
and Emilio Gómez Paquiyauri, of their mangled remains and their decomposing
bodies, was indelibly recorded in the memory of their beloved next of kin, and will
remain there for the rest of their lives. There is no forgetting. As Cicero argued, in
the year 45, in his treatise On Supreme Good and Evil (better known as De
Finibus),
"(...) is it in our power to choose our memories? Themistocles, in any case,
when Simonides or any other promised to teach him the art of memory, answered: ‘I
prefer oblivion, as I remember even what I do not want to, and I cannot forget what I
want to forget.’ (...) It seems characteristic of an overly authoritarian philosopher to
forbid that we remember.”34
In the midst of the tragic vulnerability of the human condition, the grief of
remembering brutality and impunity is often mitigated by the lenitive of justice,
though delayed, the strict observance of which –as Cicero added in his daytranslates into the welfare of human society.35
36.
The next of kin of the murdered brothers, Rafael and Emilio Gómez
Paquiyauri, today finally found human justice, by means of the Judgment that the
Inter-American Court has just rendered. Enforcement of the international
responsibility of the respondent State was asserted and established at the end of an
adjudicatory proceeding activated by individuals as the subjects of International
Human Rights Law, endowed with legal/procedural capacity. Facts such as those in
the instant case have, therefore, generated a reaction in human conscience, which
has led to concrete results. And the degree of evolution that we have attained
today in the current sphere of protection reveals that, despite the tragic inevitability
of human suffering, human conscience has driven the Law (as its ultimate material
source) toward the identification and application of means to alleviate that
suffering, inherent to the tragically vulnerable human condition.
V.
Compulsory Law (Jus Cogens) and the Establishment of the
Aggravated International Responsibility of the State
33
.
Even for purposes of directly receiving reimbursement for the legal costs of the international
proceeding, as in the instant case.
34
.
Book II, lines 101-108.
35
.
See De Finibus, book II, lines 93-95 and 118-120.
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