3
9. I immediately noted that in 2004 there was acquiescence in three cases
regarding Guatemala (Cases of Plan de Sánchez Massacre, Molina Theissen and
Carpio Nicolle), “whose representatives submitted in the respective hearings the
request for forgiveness addressed by the State to the victims” —an expression with
the positive effect of alleviating the moral consequences of the breach— and I
mentioned that “the same happened during the first regular sessions of this year in
two cases regarding Colombia (Cases of Mapiripán Massacre and Wilson Gutiérrez
Soler).” I added that “it is significant that a tendency to this type of attitudes,
which deserve reflection and consideration, seems to be emerging. We speak about
a tendency -incipient or moderate, certainly- bearing in mind that over the last
years several States have made statements wherein they acknowledge their
international liability. This has occurred in cases from Argentina (Cases of Garrido
and Baigorria and Bulacio), Bolivia (Case of Trujillo Oroza), Ecuador (Case of
Benavídes Cevallos), Peru (Case of Barrios Altos) and Venezuela (Case of The
Caracazo), in addition to the above mentioned cases from Guatemala and
Colombia.”
10. The judgment to which I attach this concurring Separate Opinion refers
precisely to one of those adjudicatory cases: the Case of Gutiérrez Soler v.
Colombia, wherein acquiescence was made under unique conditions. The “manner
in which acknowledgment of liability and request for forgiveness were made —I
noted in the above mentioned report submitted to the Commission on Legal and
Political Affairs of the Organization of American States— sets an outstanding
precedent.” I concluded that “our Court has not disregarded these facts, which have
a significant political, legal, and moral value and so it has expressed in the
pertinent orders.” My Separate Opinion gives me the opportunity to mention these
comments —which are those of the Court as whole— and highlight once more the
special characteristics of the acknowledgment of liability and request for
forgiveness made at the public hearing in the Case of Gutiérrez Soler, held in the
courtroom on March 9, 2005. As to the statements made by the parties at such
hearing, I refer to paragraphs 28, 29, and 30 of the Judgment.
C) THE PRACTICE OF ACQUIESCENCE
11. It is meet to add some remarks regarding acquiescence and acknowledgment of
international liability by the State. The first one refers to a practical issue which
influences the course of the proceedings and the opinion of the Court. I refer to the
content and manner of the procedural act performed by the State, which is
undoubtedly relevant and influences the course and the resolution of the
proceedings, though it does not determine them necessarily. If the State merely
states that it acknowledges its “international liability” for the facts alleged in the
case, that does not necessarily encompass all the issues which there is an interest
in knowing and on which a decision is to be rendered. Hence, the Court addressed
this subject in the amendments made to the Rules on November 25, 2003 and in
effect as of January 1, 2004.
12. At present Article 38(2) of the Rules of the Court regarding the response to the
application, but also applicable in its pertinent parts to the subsequent
acquiescence -which, in essence, is a supplementary and delayed response to the
application— sets out that: “In its answer, the respondent must state whether it
accepts the facts and claims or whether it contradicts them, and the Court may
consider accepted those facts that have not been expressly denied and the claims
that have not been expressly contested.” In turn, Article 53(2) sets forth that: “If
the respondent informs the Court of its acquiescence to the claims of the party that
has brought the case as well as to the claims of the representatives of the alleged
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