8 Reparations, 2001, para. 25), underscore the ties of solidarity between the dead and the living through the unity of all humankind, in the temporal sense. In my opinion, this point deserves greater attention from the International Law of Human Rights, since until now it has focused almost exclusively on the living (as the holders of those protected rights), without sufficiently considering the suffering of the dead (except for establishing reparations), which, in turn, is inevitably projected onto the living. 23. This temporal dimension helps us to always keep the victims, including the victims of the crime, in mind. The search for and attainment of justice should be carried out with the recognition of the central position of the victims (all of them) in the conceptual universe of International Human Rights Law. The current debate surrounding this issue does not distance itself from the victims of the crime at any point. On the contrary, the suffering of the victim assumes a central position in the search for justice. 28 In the present Judgment of the Hilaire, Constantine and Benjamin et al. Case, the Inter-American Court has properly taken into account, and indeed could not have refrained from doing so, the need to bear in mind the suffering of the murder victims and their families (para. 101). 24. The Court has also recognized the need that justice be served, by means of the trial (with its due process guarantees) and punishment of those responsible (para. 102). But the attainment of justice is not related to vengeance (public or private), contrary to the underlying assumption of morbid acts or rituals (with a clearly vengeful purpose) with “witnesses” to the execution of the death penalty. 29 These acts or rituals can be viewed as disrespectful to the memory of those victimized and the values of their families. In sum, the State cannot resort to violence and the same methods employed in the murders. 25. Always bearing in mind the suffering of the family and dependents of the deceased victims of the crime, the great dilemma between determinism (or predestination) and freedom (including the freedom to do wrong) persists without any definitive answers to be found, not even within Philosophy or Theology. In the face of the existence of evil, the resolution of this dilemma cannot be found in vengeance (public or private). We live, in effect, surrounded by the mysteries inherent to human existence from its beginning to its end, motivated by the hope that we perhaps may find answers to some of them; however, the means or resources that we rely upon to confront wrongdoing, which is part of the human condition, are limited. If we persevere in the search for some way to live with these mysteries, it is more likely that we will find it in the humanities, in literature or the arts, or in religion, than in the law, much less in positive law. 26. As such, and always conscious of our limitations, I will now refer to some of the provoking words of Reflections on the Guillotine (1957) by Albert Camus. According to this insightful author- one of the most influential of the 20th century, “retribution derives from nature and instinct,” and not the law, which, “by definition, cannot obey the same laws as nature. If the act of murder is found in the nature of man, the law is not made to imitate or reproduce this nature,” but rather to correct it. Although it applies arithmetic compensation of one life (that of the victim) for 28 Cf. P. Hodgkinson, “Victims of Crime and the Death Penalty,” in The Death Penalty- Abolition in Europe, Strasbourg, Council of Europe, 1999, pp. 37 and 47-53. 29 Ibid. pp. 47 and 51.

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents