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5.
To deny the broad scope of the duty of protection under Articles 1(1) and 2 of the
Convention – or to minimize them by means of a dispersed and disintegrated interpretation
of said duties- would amount to depriving the Convention of its effet utile. The InterAmerican Court cannot shift away from its jurisprudence constante in this regard, and it has
the duty to watch over the conservation of the high standards of protection built over the
years through its jurisprudence. Its noteworthy construction of jurisprudence1 on this
matter cannot be curtailed, and I would firmly oppose any attempt to do so. Said
construction expresses Law in evolution, which admits no regression. Furthermore, the
gravity of the facts in the instant case of the Mapiripán Massacre, with regard to Colombia,
very clearly shows the importance of maintaining the appropriate hermeneutics of Article
1(1) of the American Convention.
6.
Before referring to my reflections on the facts in the cas d'espèce, I merely wish to
add here that, just as the existence of a law that is manifestly incompatible with the
American Convention entails per se a violation of said Convention (under the general duty of
its Article 2, to harmonize domestic legal provisions with the Convention), the lack of
positive protection measures –and even preventive ones- by the State, in a situation that
reveals a consistent pattern of violent and flagrant and grave human rights violations,
entails per se a violation of the American Convention (under the general duty to guarantee
rights, set forth in Article 1(1), that is, to respect and insure respect for the rights
protected).
7.
In this regard, the general duties of Articles 1(1) and 2 of the American Convention
have an autonomous meaning of their own, and establishment of their non-fulfillment is not
subject to establishing specific individual violations of one or another right enshrined in the
American Convention. With regard to this matter, the most enlightened jurisprudence of
this Court (see above) has in fact acknowledged the broad and autonomous meaning of the
general duties set forth in Articles 1(1) and 2 of the American Convention, whose
abridgment, rather than being subsumed in individual violations of specific rights under the
convention, instead is addedl to said violations.
II.
Finding the Respondent State Responsible in the Circumstances of the
Instant Case.
8.
In the instant Judgment in the case of the Mapiripán Massacre, the Court has noted
that the respondent State acknowledged its international responsibility (on 07.03.2005) "for
violation of Articles 4(1), 5(1) and (2), and 7(1) and (2) of the American Convention on
Human Rights, in connection with the facts that took place in Mapiripán in July 1997” and it
has granted said acknowledgment “full effect” (para. 125). Said facts consisted of acts
committed by a group of paramilitary against the victims (para. 117), and the State, after
acknowledging them, subsequently sought to object to said acts in the Mapiripán Massacre
being attributed to the State itself. The Court noted that
"while the acts that took place between July 15 and 20,1997, in
Mapiripán, were committed by members of paramilitary groups, the massacre
.
Which I have recently attempted to summarize; see, e.g. , A.A. Cançado Trindade, "The Case-Law of the
Inter-American Court of Human Rights: An Overview", in Studi di Diritto Internazionale in Onore di G. ArangioRuiz, vol. III, Napoli, Edit. Scientifica, 2004, pp. 1873-1898.
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