6
Law the role of the victim does in fact transcend that of the passive subject of the
crime, as the victim there becomes the true active subject of international legal
action in defense of the rights inherent to him or her as a human being.
17.
As stated above, International Human Rights Law, rather than domestic or
international criminal law, recovered the central role of the victim as a subject of law
–and an active subject of the juridical relationship- in the international legal order.
While criminal law –both under domestic and international venues- is primarily
geared toward the criminal, relegating the victim to a marginal position,
International Human Rights Law, instead, restores the central position of the victim,
even as an active subject of international action for implementation of the
responsibility of the State for injuries to his or her rights.
18.
Work for the international protection of human rights soon showed that the
contraposition of the respondent States to the individual applicants was essential to
it. It was precisely in this domain of protection that –as I underlined in my Separate
Concurring Opinion in the Castillo Petruzzi et al. versus Peru case (Preliminary
Objections, Judgment of 04.09.1998)- “the historical rescue of the position of the
human being as subject of International Human Rights Law, endowed with full
international procedural capacity” took place” (para. 5). This recovery was
implemented through enshrinement of the right to individual international petition,
granted in the broadest terms, to any person, by Article 44 of the American
Convention on Human Rights.
19.
This right has in fact been exercised, under the American Convention, by
persons who survive under extreme adversity (poor and marginalized persons,
“street children,” incarcerated individuals, the next of kin of missing persons, among
others). It is under circumstances such as these that International Human Rights
Law attains its fullness and realizes its ultimate aim. Protection of victims and
reparations for the damage they have suffered constitute its raison d'être. This
noteworthy development –I added in my aforementioned Separate Concurring
Opinion in the Castillo Petruzzi et al. case - entailed a real transformation of the
international legal order itself, by recognizing that
"the necessity that all the States, in order to avoid new violations of human
rights, are made responsible for the way they treat all human beings who are under
their jurisdiction. This would simply not have been possible without the consolidation of
the right of individual petition, amidst the recognition of the objective character of the
obligations of protection and the acceptance of the collective guarantee of compliance
with these latter. This is the real meaning of the historical rescue of the individual as
subject of International Human Rights Law." (para. 12)
20.
The victims themselves (apparently the weakest party vis-à-vis public
authorities) took the initiative of activating the international action to defend their
rights. As I reflected in my aforementioned vote in the Castillo Petruzzi et al. case,
“In the public hearings before the Inter-American Court, in distinct cases, (...) a point
which has particularly drawn my attention has been the observation, increasingly more
frequent, on the part of the victims or their relatives, to the effect that, had it not been
for the access to the international instance, justice would never have been done in their
18
.
L. Rodríguez Manzanera, Victimología - Estudio de la Víctima, 8th. ed., Mexico, Ed. Porrúa, 2003,
pp. 25 and 67.
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