The Inter-American Court of Human Rights: The Ambassador of Universalism 69 international law allows us to better understand the Inter-American Court’s jurisprudence regarding the aggravated responsibility of the State. This kind of responsibility corresponds to a particularly grave violation of the Convention which may be described, in theory at least, as a “ State crime”. 42 The Goiburú case moves from implicit to explicit by expressly referring to the notion of State terrorism. From the overall jurisprudence of the Court, it appears that a grave violation seems to require two elements in order for it to be identified as a “ State crime”: it must demonstrate a flagrant or systematic breach of required obligations and must also concern imperative norms. 43 In practice, the aggravated nature of the violation essentially depends on the circumstances in which it is committed: governmental planning, systematisation, and impunity seem to be common denominators of this type of violation. Therefore, Goiburú confirms that the Court distinguishes between “ simple” and “ aggravated” violations of the American Convention.

The consequences of such a distinction are, above all, political. In referring to the aggravated responsibility, the Court indeed condemns a political regime, a criminal government, and its practices in order to contribute to the consolidation of democratic transitions operating in the majority of the States in question by means of international justice. The legal consequences themselves are more difficult to identify and current Inter-American jurisprudence does not allow them to be clearly defined. It might be suggested that the acknowledgement of aggravated responsibility should naturally justify the Court’s imposition of punitive reparations. However, since its early judgments, the Inter-American system has avoided ordering such reparations. 44

The Court has designed its reparations system according to general international law

42A. A. Cançado Trindade, Separate opinion annexed to the Myrna Mack Chang Case, supra note 32 at para. 27-32, outlines his position on the issue by referring explicitly to the old Article 19 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, and by describing the illegal act as an “ international crime” or a “ crime of State”, implying aggravated responsibility. See also the comments in A. A. Cançado Trindade, Separate opinion annexed to the Plan de Sánchez Massacre Case, supra note 32.

43Consequently, it is unlikely that the Court would condemn a State for aggravated responsibility for the systematic violation of a right such as the right to property or to freedom of assembly, as these rights do not generally form part of jus cogens. Similarly, the Court would not, in our opinion, uphold the State’s aggravated responsibility for an isolated violation of the prohibition of torture, although this does form part of jus cogens. For an analysis of this issue from the angle of public international law, see Tigroudja, H., “ La Cour interaméricaine des droits de l’homme au service de l’humanisation du droit international. Propos autour d’avis et d’arrêts récents”, (2006) 52 A. F. D. I. 617.

44In its first judgment on reparations, the Court deemed that the reparation aimed at by Article 63(1) of the Convention is of a compensatory and not a punitive nature. It emphasized in this context that, although certain national tribunals, especially Anglo-American ones, impose punitive damages with a view to deterrence, this principle is not currently applicable to international law. Velásquez-Rodríguez Case, supra note 27 at para. 37-38. The Court deemed that, amongst other things, the nature and extent of the reparation depend on the material and mental damage inflicted. Reparations may lead to neither the enrichment nor the impoverishment of the victims or of their successors. White Van Case, supra

note 28 at para. 79 ; Blake Case (Guatemala) (1999) Inter-Am. Ct. H. R. (Ser. C) No. 48, at para. 34,

Annual Report of the Inter-American Court of Human Rights : 1999, OEA/ Ser. L/ V/ III. 47/ doc. 6 (2000) 19 [ Blake Case] ; Castillo-Páez Case (Peru) (1998) Inter-Am. Ct. H. R. (Ser. C) No. 43, at para. 53,

Annual Report of the Inter-American Court of Human Rights : 1999, OEA/ Ser. L/ V/ III. 47/ doc. 6 (2000) 41 [ Castillo-Páez Case] ; Garrido and Baigorria Case (Argentina) (1998) Inter-Am. Ct. H. R. (Ser. C) No. 39, at para. 43, Annual Report of the Inter-American Court of Human Rights : 1999,

OEA/ Ser. L/ V/ III. 47/ doc. 6 (2000) 39 [ Garrido and Baigorria Case].