8
of Foreign Affairs, who act for themselves or by duly confirmed authority – make
declarations, acknowledge facts, accept claims or put forward a defense, they do so
in representation of the State itself, thus binding it before the international body.
Hence, these acts of the State’s intent cannot be conditioned to what national bodies
may state, considering the way in which a case is processed before a specific national
body under domestic legislation. This happens, for example, when the executive
authority declares that the State, in representation of which it is acting,
acknowledges facts that may entail criminal consequences, or acquiesces to claims
set out in the application, which also involve domestic effects, but at the same time –
on a subsequent occasion – reconsiders the scope of its declaration, even though this
has been emphatic and decisive, and protects the ruling that the domestic judicial
organ may deliver.
29.
I wish to establish clearly the meaning of the observations that I am making.
I am in no way disregarding the fact that the Inter-American Court is not a criminal
court, and is not called on to rule on the individual criminal responsibility of those
who, in the performance of public duties, violate human rights, incurring in conduct
classified as an offense or crime. Establishing these individual responsibilities is a
matter for the domestic criminal jurisdiction only – although this could eventually
correspond to international criminal justice, in the appropriate circumstances – and,
in this respect, the human rights Court cannot convict individuals. Nor am I
suggesting that one power of the State can predetermine the conduct of the others in
a democratic regime with separation of powers and distribution of functions.
However, acknowledgement of facts by the State implies that the latter is admitting
the truth of those facts and acquiring the obligation to accept the respective
consequences, of both a criminal and any other nature.
30.
This connection between the acknowledgement of the facts and the
acquiescence of the State – assuming that it is formulated clearly and completely,
without phrases that sow doubts or conditions that could lead to different conclusions
and results – is perfectly clear, because (since acknowledgement and acquiescence
have intervened) the Convention allows the Inter-American Court to begin to hear
and decide the issue of reparations on the basis that it has been undisputedly
established: that the violation claimed in the application has occurred; what this
consisted in, and that it was carried out by State agents or other persons for whom
the State must respond (Articles 63(1) of the Convention and 52(2) of the Rules of
Procedure). Subsequently, it will be possible to order compliance with the obligation
to provide criminal justice that concerns the State, and the latter will have to define,
under its own legal system, which persons must respond individually for the criminal
facts that have occurred and been acknowledged by the State in the international
judicial forum.
31.
If the State conditions or subordinates subsequent acts to the existence of
certain facts – which is not the same as the issue of individual convictions for the
latter – any acknowledgement of facts or acceptance of claims stated by the
authority with the competence to manage international relations and represent the
State in matters of this nature, even those formulated by the Head of State himself,
will lack certainty, require confirmation, or be open to rectification by another
national authority, through an act of domestic law which could contradict, modify or
revoke it. This would sow absolute doubt with regard to compliance with the
international commitments assumed when the State formally accedes to an
international convention and accepts the juridical consequences deriving therefrom.
In the terms of the Vienna Convention on the Law of Treaties, a State party to a
treaty may not invoke the provisions of its internal law as justification for its failure
to perform a treaty, to which it acceded freely.