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Guatemala is obligated to investigate the events and identify those responsible,
including a thorough and efficient investigation to determine if there were
any violations to International Humanitarian Law, with the purpose of
identifying those responsible.
There are three arguments that support this assertion.
a) The interpretation and application of the American Convention do not
exclude those of general international law; on the contrary they require
them. The preamble to the American Convention expressly refers to the principles
reaffirmed and developed in international instruments, “both of a universal and
regional nature” (para. 3). It also refers to obligations imposed by international law
(Article 27), as well as to “the generally recognized principles of international law”
(Article 46(1)(a)).
b) The fact that the Inter-American Court lacks jurisdiction to determine
violations of specific conventions such as the Geneva Conventions of 1944 or
the Convention against Genocide (1948), does not mean that the Court cannot
consider acts that these conventions typify as grave violations or genocide, as
aggravating circumstances (aspect developed by Judge Antonio Cancado Trindade
in his concurring opinion in the Case of the Massacre of Plan de Sanchez.) This
argument becomes stronger when these conventions relate to the violation of a
right established in this Convention, such as when it deals with a violation to the
Right to Life established in Article 4 of the American Convention.
In this sense, and, as argued by jurist Cancado Trindade “under the American
Convention, the determination of the aggravated international responsibility of the
State is perfectly possible…It wouldn’t be the first time that the Inter-American
Court identified an aggravated international responsibility (as occurred in the terms
of paragraph 51 of the judgment on the case of the Plan de Sanchez Massacre or in
its previous Judgment, from 25(1)1.2003, on the case Myrna Mack Chang versus
Guatemala, in which the Court concluded that, of the facts proven, an “aggravated
international responsibility by the respondent State” is inferred, para. 139.)”
(Concurring opinion of Cancado Trindade Plan de Sanchez Massacre page 9)
c) At the time when the events of the instant case occurred, the prohibition
established in common Article 3 to the Geneva Conventions was already part of the
customary international law, and even of the jus cogens domain. Therefore, the
State of Guatemala was already forced to comply with this prohibition.
2. Competence and application of the Convention of Belém do Pará: It is
highly important that in this case the Convention of Belem do Para was applied. The
reasons exposed in the referred judgment were: a) the State had the obligation to
investigate all of the events with due diligence, which was pending at the time of
recognition of the Court’s contentious jurisdiction (March 9, 1987); b) this
obligation was later reaffirmed by the State with the ratification of the Convention
of Belém do Pará on April 4, 1995, thus the State had to ensure its compliance as
of that moment, even when it had not been adopted by the State at the time the
events of the case took place; and c) The Convention of Belém do Pará
complements the international corpus iuris in terms of the protection of personal
integrity.
The case of Las Dos Erres is not only paradigmatic in terms of impunity, but also in
terms of the methods of war used by the State of Guatemala while carrying out
hostilities in an internal armed conflict. The use of rape has been denounced
repeatedly as a method of torture, as well as specific violence against women,
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