15
56.
They are obligations to do. And, among them, is the obligation to identify,
prosecute, and punish the perpetrators of the crimes of State, who, due to their
actions (or omissions), incurred in international criminal responsibility, besides
compromising the international responsibility of their State, on behalf of who they
acted (or omitted), in the execution of a criminal policy of the State. 44 It is not
about merely individual acts (or omissions), but of a criminality organized by the
State itself. 45 Thus, it becomes necessary to take into account, jointly, the
international criminal responsibility of the individuals involved as well as the State’s
international
responsibility,
essentially
complementary;
the
aggravated
international responsibility corresponds to the crime of State of the State in
question. 46
57.
The present Judgment of the Court in the case of the Castro Castro Prison
contemplates and effectively orders a series of obligations to do, in its chapter XVI,
on reparations. These are particularly ample, from the compensations up to
measures of satisfaction and non-repetition of the injurious acts. Among the latter
(non-pecuniary reparations), I can mention the identification, prosecution, and
punishment of those responsible; and educational measures, as well as of medical
and psychological assistance. The Court, once more, has correctly considered
Articles 8 and 25 of the American Convention in their inseparability. 47 And, likewise,
correctly pointed out that gross violations, such as those of the present case, to
human rights (made up, in my opinion, by crimes of State) violate the international
jus cogens. 48
VII.
The Need and Importance of the Gender Analysis.
58.
The present case cannot be adequately examined without a gender analysis.
Remember that, as a first step, the United Nations Convention of the Elimination of
All Forms of Discrimination against Women (CEDAW, 1979) advanced on a holistic
vision of the matter, tackling women’s rights in all areas of life and in all situations
(in fact, I would even add in the light of the cas d'espèce, in the deprivation of
freedom); the Convention cries out for the modification of socio-cultural patterns of
behavior (Article 5) and highlights the principle of equality and nondiscrimination, 49 - a principle that the Inter-American Court has already
determined, in its transcendental Advisory Opinion n. 18 (of 09.17.2003) on the
Juridical Condition and Rights of Undocumented Migrants, that belongs to the
domain of the jus cogens (paras. 97-111). 50
59.
The present Judgment of the Court in the case of the Castro Castro Prison
correctly warns of the need of the gender analysis, since, in that specific case,
.
Cf., in this sense, R. Maison, La responsabilité individuelle pour crime d'État en Droit
international public, Bruxelles, Bruylant, 2004, pp. 22, 30, 262-263, 286, 367, 378, 399, 409, 437, and
509-513.
44
.
Ibid., pp. 24 and 251.
.
Ibid., pp. 294, 298 and 412.
.
Operative paragraph n. 6, and corresponding whereas paragraphs.
.
Cf. paragraphs 203 and 271.
45
46
47
48
.
E.A. Grannes, The United Nations Women's Convention, Oslo, Institutt for offentlig Retts
skriftserie (n. 13), 1994, pp. 3, 9, and 20-21.
49
.
50
And cf. Concurring Opinion of the Judge A.A. Cançado Trindade, paras. 58 and 65-85.