Punitive Damages and the Principle of Full Reparation in the Case Law of the Inter-American Court of...

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PUnItIVe dAMAGes And tHe PrInCIPLe oF FULL rePArAtIon In tHe CAse LAw oF tHe Inter-

AMerICAn CoUrt oF HUMAn rIGHts

Agostina n. cichero* and sebastian A. green martínez**

ABstrAct

This article considers the potential applicability of punitive damages in international human rights law and, more specifically, whether the Inter-American court of human rights has ever recognized its existence as a rule of international law. to this aim, the evolution of the relevant decisions of the court will be analyzed, identifying three stages: (i) the early years of the court, when it plainly rejected punitive damages requests by stating that punitive damages were not a rule of international law, but of some domestic legal systems; (ii) the introduction of the notion of aggravated responsibility, as well as the debate generated by Judge cançado trindade on the punitive function of reparation; and (iii) recent decisions of the Inter-American court of human rights. In the light of the case law of the court, it can be concluded that punitive damages breach the principle of fair compensation enshrined in the American convention on human rights, and that, in effect, the Inter-American court of human rights has never granted punitive

* Agostina n. cichero is a student Assistant of Public International Law, chair of Prof. gutiérrez

Posse at the university of Buenos Aires, Argentina.** sebastian A. green martínez is a Legal Adviser at the national directorate of International

Affairs and controversies of the Argentine treasury Attorney general’s office and a Junior Lecturer (Ayudante de segunda) of Public International Law, chair of Prof. gutiérrez Posse at the university of Buenos Aires, Argentina.

This paper was produced as part of their activities within the research project dct1210 “¿Más allá del ius in bello? La regulación de los conflictos armados en la historia del ius gentium y los límites del DIH como régimen autónomo frente a las otras ramas de un Derecho Internacional Público ‘Fragmentado’”, supervised by dr emiliano Buis and mag. natalia Luterstein at the university of Buenos Aires, Law school. The idea of this article emerged during the lecture “Sujetos y Jurisdicciones” delivered by mag. natalia Luterstein at the university of Buenos Aires, Law school. The authors thank estefania henson for her meticulous linguistic review of

The Inter_American Court of Human Rights.indd 337 27-4-2015 10:17:58

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this article. The opinions expressed are those of the authors, and do not necessarily represent the opinion of the treasury Attorney general’s office or the university of Buenos Aires.

or exemplary damages, but it has consistently interpreted that reparations must be proportional to the damage effectively caused.

1. IntroductIon

state responsibility for the commission of wrongful acts is one of the pillars of international law.1 It is a customary rule that a state incurs in international responsibility whenever it breaches an international obligation, and its conduct is attributable to that state.2 one of the main legal consequences of such responsibility is the birth of a new obligation: the duty to repair the damages caused by the internationally wrongful act.3 reparation may adopt three different forms: restitution, compensation and satisfaction, either separately or in combination.4

The International Law commission (ILc) has recognized the existence of a customary rule on reparations in the commentary to the Articles on responsibility of states for Internationally Wrongful Acts, under which the remedy should be full or complete.5 Although international case law addresses this issue,6 the decision delivered by the Permanent court of International Justice (PcIJ) in the case concerning the Chorzów Factory is the most renowned. In this case, the PcIJ recognized that:

“[t]he essential principle contained in the actual notion of an illegal act (…) is that reparation must, so far as possible, wipe out all the consequences of the illegal act

1 m.n. shaw, International Law (cambridge, cambridge university Press 2008, 6th edition), p. 778.

2 united nations, International Law commission (2001) “Articles on state responsibility for International Wrongful acts with commentaries”, u.n.doc.A/56/10, Article 2; PcIJ (Preliminary objections) 14 June 1938, Phosphates in Morocco (Italy v. France), p. 10; IcJ (Judgment) 24 may 1980, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), para. 56; J. crawford, Brownlie’s Principles of Public International Law (oxford, oxford university Press 2012, 8th edition), p. 542.

3 united nations, International Law commission (2001) “Articles on state responsibility for International Wrongful acts with commentaries”, u.n.doc.A/56/10, Article 31.

4 Ibid., Article 34.5 Ibid., Article 31. since it is not the purpose of this article to analyse the existence of such rule,

the authors assume its existence for the purposes of the present paper only. It must also be noted that in the commentary to Article 28 the ILc specified the scope of this rule: “… Part two (…) does not apply to obligations of reparation to the extent that these arise towards or are invoked by a person or entity other than a state”.

6 IcJ (Judgment) 25 september 1997, Gabčíkovo‑Nagymaros Project (Hungary v. Slovakia), paras. 7, 80; IcJ (Judgment) 26 february 2007, Application of the Convention on the prevention and punishment of the crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), para. 460; IcJ (Advisory opinion) 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paras. 136, 198; International tribunal on the Law of the sea (Judgment) 1 July 1999, M/V Saiga No.2 (Saint Vincent and Grenadines v. Guinea), paras. 169–171.


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and re-establish the situation which would, in all probability, have existed if that act had not been committed.”7

The principle of full reparation, as conceived by the PcIJ, appears to be in conflict with the notion of “punitive damages” (also known as “exemplary damages”), which can be defined as “sums awarded apart from any compensatory or nominal damages, usually [...] because of particularly aggravated misconduct on the part of the defendant.”8 The question that arises with regards to this concept is the following: given that punitive damages imply a surplus with respect to the reparation of the damage actually caused (as a form of sanction), are such damages contrary to the principle of full reparation? In other words: does the principle of full reparation establish a minimum, so that all the damage caused must be repaired? or does it also imply a maximum, therefore limiting reparation to the amount necessary to re-establish the situation that would have existed if the wrongful act had not been committed?

Punitive damages are a controversial issue in international law. scholars have affirmed that punitive damages belong to domestic legal systems and that they cannot be considered as a rule of international law.9 In that vein, it has been considered that punitive damages would involve a surplus with respect to full reparation for damages actually caused and, consequently, would breach that principle.10

This debate has been addressed by the Inter-American court of human rights (IActhr) in several occasions, and an analysis of its case law could contribute to shed some light on the matter. Applicants before the IActhr have repeatedly asked for the application of punitive damages and, in that sense, the considerations and decisions adopted by its members show mixed views between the principle of full reparation11 and the application of punitive damages.

As advanced, the present chapter will analyse the evolution of the IActhr’s case law on the matter, identifying three stages. The first stage took place in the early years of the IActhr and was characterized by plain rejection of punitive damages requests by considering them not a rule of international law, but of some domestic legal systems. The second stage involves both the introduction of the notion of aggravated responsibility, as well as the debate generated by Judge

7 PcIJ (Judgment) 13 september 1928, Factory at Chorzów (Germany v. Poland), p. 47–48. 8 J.y. gotanda, Damages in Private International Law, 326 Recueil des cours de l’Académie de

droit international de La Haye 83, 322 (2007), p. 322.9 P. daillier and A. Pellet, Droit international public, (Paris, LgdJ 2002, 7th edition) p. 764. see

also IcJ (Judgment) 26 october 2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) dissenting opinion of Judge Ad Hoc mahiou, p. 410.

10 n.h.B. Jørgensen, The Responsibility of States for International Crimes (oxford, oxford university Press 2000), p. 207; d. shelton, Remedies in International Human Rights Law (oxford, oxford university Press 2005), p. 358.

11 Article 63.1 of the American convention of human rights (Achr) actually refers to “fair compensation”, although the IActhr considered in several occasions that both notions imply the same, as will be demonstrated in the following section.


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cançado trindade on the punitive function of reparations and the consequent possibility of applying punitive damages. finally, the third stage consists of recent decisions of the IActhr which will be displayed and analysed.

Are punitive damages applicable in international human rights law? does the IActhr recognize its existence as a rule of international law? It is the objective of this chapter to find an answer to these questions.

2. the PrIncIPLe of “fAIr comPensAtIon” And Its reLAtIon to the PrIncIPLe of fuLL rePArAtIon

Article 10 of the Achr establishes the right to compensation of every person. Particularly with regards to the proceedings before the court, Article 63(1) adopts the principle of “fair compensation”, as a form of remedy to address the consequences of the measure or situation that constituted a breach of a right or freedom. The IActhr stated, in the paradigmatic case Velásquez Rodríguez v. Honduras, that:

“[r]eparation of harm brought about by the violation of an international obligation consists in full restitution (restitutio in integrum), which includes the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm.”12

In Aloeboetoe et al. v. Suriname, the IActhr stated that the principle of reparation enshrined in Article 63(1) of the Achr codified a rule of customary law recognized by the IActhr, as well as by other international tribunals, among which it quoted the aforementioned decision of the PcIJ in the Chorzów case.13 moreover, in Godínez Cruz v. Honduras, the IActhr referred to the principle of full restitution (restitution in integrum) as defined in Chorzów, and connected it to the principle of fair compensation of Article 63(1), concluding that “in order

12 IActhr (Judgment) 21 July 1989, Velásquez Rodríguez v. Honduras, para. 26. see also IActhr (Judgment) 3 december 2001, Cantoral Benavides v. Peru, para. 41 (“reparation for damages caused by a violation of an international obligation requires, whenever possible, full restitution (restitutio in integrum), which is to reinstate the situation that existed prior to the commission of the violation”); IActhr (Judgment) 27 february 2002, Trujillo‑Oroza v. Bolivia, para. 61; IActhr (Judgment) 10 september 2003, Aloeboetoe et al. v. Suriname, para. 47; IActhr (Judgment) 31 may 2001, Cesti‑Hurtado v. Peru, para. 36 (“As the word indicates, reparation consists in the measures that are intended to eliminate the effects of the violations that were committed.”); IActhr (Judgment) 26 may 2001, Villagrán‑Morales et al. v. Guatemala (“Street Children”), para. 63; IActhr (Judgment) 22 february 2002, Bámaca‑Velásquez v. Guatemala, para. 39.

13 IActhr (Judgment) 10 september 2003, Aloeboetoe et al. v. Suriname, para. 43.


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to fix the corresponding indemnity, the court must rely upon the American convention and the applicable principles of international law.”14

consequently, it can be affirmed that in the view of the IActhr there is a conceptual identity between the principle of full reparation elaborated by the PcIJ in the Chorzów case, and the standard of fair compensation adopted by Article 63(1) of the Achr. having established this, it is thus evident that the discussion about the applicability of punitive damages in international law can also be extrapolated to the Inter-American system of human rights. The following sections will be dedicated to explore the interaction between the notions of punitive damages and the principle of fair compensation/full reparation in the case law of the IActhr. to this end, the three different stages identified in the previous section will be displayed.

3. PunItIVe dAmAges As A ruLe of domestIc LegAL systems

In its early decisions, the IActhr reaffirmed the principle enshrined in Article 63(1) of the Achr, according to which the violation of a right or freedom protected by the convention may entail the obligation to pay a fair compensation to the injured party. This has been held in the cases Velásquez Rodríguez v. Honduras, Godínez Cruz v. Honduras and Garrido and Baigorria v. Argentina. In these cases the attorneys asked the IActhr to award punitive damages, given that the states had allegedly committed extremely grave violations of human rights. The IActhr specified the scope of the term “fair compensation”, as had been applied in the merits, and that punitive damages were not a rule of international law, but of some domestic legal systems.

3.1. VELÁSQUEZ RODRíGUEZ V. HONDUR AS (1988)

The case concerns the forced disappearance of manfredo Velasquez rodríguez, a student at the national Autonomous university of honduras, after he was violently detained without a warrant for his arrest by members of the national office of Investigations (dnI) and the Intelligence services of the Armed forces of honduras in 1981. several eyewitnesses also reported that he had been subjected to harsh interrogation and cruel torture.

In this case, the IActhr unanimously determined that the state of honduras had violated its obligations to respect and to ensure the right to personal liberty set forth in Article 7 of the Achr, the right to humane treatment set forth in Article 5 of the Achr, as well as its obligation to ensure the right to life set forth

14 IActhr (Judgment) 21 July 1989, Godínez Cruz v. Honduras, para. 29.


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in Article 4 of the Achr, all of them read in conjunction with Article 1(1) thereof. consequently, it condemned the state of honduras to pay “fair compensation to the next-of-kin of the victim.”15 however, the parties were unable to reach an agreement on the form and amount of just compensation to be paid, so the IActhr defined it in its decision on reparations and costs.

during the proceedings, the attorneys recognized as counsellors or advisers of the Inter American commission of human rights (IAcmmhr) requested the payment by the government of punitive damages as part of the indemnity, because this case involved extremely serious violations of human rights.16 The IActhr responded to this petition with a restrictive interpretation of Article 63(1):

“The expression ‘fair compensation’, used in Article 63(1) of the convention to refer to a part of the reparation and to the ‘injured party’, is compensatory and not punitive. Although some domestic courts, particularly the Anglo-American, award damages in amounts meant to deter or to serve as an example, this principle is not applicable in international law at this time.”17

consequently, the IActhr rejected the application of punitive damages.

3.2 . GODíNEZ CRUZ V. HONDUR AS (1989)

similar to the previous case, in Godínez Cruz v. Honduras the IActhr analysed the responsibility of the state for the forced disappearance of the victim, Professor saúl godínez cruz, which occurred in 1982. The evidence presented by the IAcmmhr showed that godínez was a victim of a systematic and selective practice of disappearances, carried out with the assistance or tolerance of the government of honduras, and that and he was presumably tortured, executed and clandestinely buried by agents of the Armed forces of honduras.

The IActhr unanimously declared that honduras had violated its obligations to respect and to ensure the rights enshrined in Article 7 (right to personal liberty) and Article 5 (right to humane treatment) of the Achr, as well as its obligation to ensure the right to life set forth in Article 4, all of them read in conjunction with Article 1(1) thereof, therefore condemning honduras to pay a fair compensation to the next of kin of the victim.18

The victim’s attorneys asked for the award of punitive damages, given that the case “involved extremely serious violations of human rights.”19 however, in the decision on reparations and costs, the IActhr reproduced the reasoning

15 IActhr (Judgment) 29 July 1988, Velásquez Rodríguez v. Honduras, para. 194. 16 IActhr (Judgment) 21 July 1989, Velásquez‑Rodríguez v. Honduras, para. 37.17 Ibid., para. 38. 18 IActhr (Judgment) 20 January 1989, Godínez Cruz v. Honduras, para. 203. 19 IActhr (Judgment) 21 July 1989, Godínez Cruz v. Honduras, paras. 8, 25.


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applied in Velásquez Rodríguez and emphasized the compensatory quality of the reparations, denying any punitive or exemplary function,20 and therefore rejecting the attorneys’ request to award punitive damages.

3.3. GARRIDO And BAIGORRIA V. ARGENTINA (1998)

The third case of this first stage also refers to the responsibility of the state for the forced disappearance of persons. The victims, raúl Baigorria and Adolfo garrido, were detained by personnel of the Police of mendoza in that province, in Argentina in 1990. After hearing of these facts through the account of an eyewitness, the family of garrido immediately initiated a search, the result of which was that both men were not found to be detained at any police division. Their families filed multiple complaints before governmental authorities, and conducted an intense search in judicial, police, and health facilities, all to no avail. furthermore, to the date of the IActhr’s decision, the judicial file on this proceeding was still in the initial stage of processing.

In this case, the IAcmmhr alleged the violation of the rights contained in Articles 1(1) (obligation to respect rights), 4 (right to life), 5 (right to humane treatment), 7 (right to personal Liberty), 7(5), 7(6), 8, and 9 (right to a fair trial), 8(1) (judicial guarantees), and 25 (judicial protection).21 The republic of Argentina expressly accepted its international responsibility in the case,22 of which the IActhr took note and granted the parties a period of six months to reach an agreement on reparations and compensation.23

After months of negotiations, the Province of mendoza and the representatives of the victims arrived at a reparations agreement, which provided that an arbitral tribunal was to be formed to determine the amount of the indemnity to be paid to the victims’ families, and an ad hoc commission was to be created to conduct an inquiry into the events surrounding the victims’ forced disappearance. however, the IActhr determined that such agreement24 did not constitute the agreement on reparations called for in its judgment on the merits, first because it had been concluded with the Province of mendoza, which was not a party in the case, instead of the republic of Argentina, and second because the arbitral decision had been challenged by the victim’s family invoking its arbitrariness. consequently, the IActhr opened the proceedings on reparations and compensation.

during the proceedings, the IActhr considered that the victim’s family had requested “indemnification that would go beyond the realm of compensation

20 Ibid., para. 36. 21 IActhr (Judgment) 2 february 1996, Garrido and Baigorria v. Argentina, paras. 2, 25. 22 Ibid., para. 25. 23 Ibid., para. 31. 24 The court referred to both the agreement and the documents that resulted out of it, i.e. the

arbitral decision and the report of the ad hoc commission.


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for damages caused, and into the punitive realm”,25 such as exemplary damages. Again, and in line with its previous decisions, the IActhr expressly rejected its power to award such damages, stating that:

“[t]he Inter-American court is not a penal court and, in this particular matter, its competence is to determine the reparations that states that have violated the convention must make. As the word suggests, reparation is achieved through measures that serve to ‘repair’ the effects of the violation committed. Their quality and their amount depend on the damage done both at the material and at the moral levels. reparations are not meant to enrich or impoverish the victim or his heirs.”26

furthermore, it affirmed that “the objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages.”27

notwithstanding this clear rejection, it is interesting to note that, after mentioning the case law on which its decision was based,28 the IActhr concluded by stressing that “there is no reason to depart from these precedents in this case.”29 It could therefore be argued that this phrase could imply that, under other circumstances, the IActhr could consider the application of punitive damages. such interpretation, however, would not be coherent with the assertion that reparations only serve to erase the effects of the violation committed, and that punitive action is outside the competence of the IActhr. Therefore, it must be concluded that this phrase, which literally interpreted could lead to confusion, must be understood in the context of the whole decision, and moreover, in the context of the jurisprudential evolution of the IActhr’s position on punitive damages.

4. InternAtIonAL AggrAVAted resPonsIBILIty And PunItIVe dAmAges LATO SENSU

The second stage was set into motion by the former President of the IActhr and current judge of the IcJ, Antonio cançado trindade. In his separate opinions

25 IActhr (Judgment) 27 August 1998, Garrido and Baigorria v. Argentina, para. 43. 26 Ibid. 27 Ibid., para. 44, quoting IActhr (Judgment) 15 march 1989, Fairén Garbi and Solís Corrales v.

Honduras, para. 136. 28 The IActhr quoted its previous decisions in the cases IActhr (Judgment) 21 July 1989,

Velásquez Rodríguez v. Honduras; IActhr (Judgment) 21 July 1989, Godínez Cruz v. Honduras; and IActhr (Judgment) 15 march 1989, Fairén Garbi and Solís Corrales v. Honduras.

29 IActhr (Judgment) 27 August 1998, Garrido and Baigorria v. Argentina, para. 44 [emphasis added].


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in the cases Myrna Mack Chang v. Guatemala, Masacre de Plan de Sánchez v. Guatemala and Gómez Palomino v. Perú, Judge cançado trindade affirmed the existence of punitive damages in international law, and proposed a different interpretation of this controversial notion, which will be analysed in the following subsections.

4.1. MYRNA MACK CHANG V. GUATEMALA (2003)

In 1990, the anthropologist myrna mack chang was extra-legally executed by orders of the high command of the Presidential general staff of guatemala. her selection as a target obeyed to political motives, due to her professional activities in connection with the investigation of the internally displaced population. moreover, such action was committed as part of a systematic plan. The modus operandi was the same in all cases and consisted of three phases: the selection of the victim, the surveillance and extra-legal execution, and finally the covering up of the perpetrators, in order to ensure their impunity to allow them to continue with the clandestine activities. to this end, with the tolerance of the state, the military intelligence operation by the Presidential general staff resorted to all types of means, including harassment, threats and murders of the next of kin of the victim and those cooperating with the courts.

The IActhr unanimously determined that the state of guatemala had violated Article 4 of the Achr (right to life) in combination with Article 1(1) thereof (obligation to respect rights). It also decided that guatemala had violated Articles 8 (right to fair trial) and 25 (right to judicial protection) to the detriment of the next of kin of the victim, as well as Article 5 (right to humane treatment), in combination with the aforementioned Article 1(1).30

It is interesting to note, however, that the state of guatemala had acknowledged its responsibility, notwithstanding which the IActhr decided to issue a judgment addressing the merits, since this constituted “a form of reparation for the victim and her next of kin”.31 and was also “a way to avoid recidivism of facts such as those suffered by myrna mack chang and her next of kin.”32 In doing so, the IActhr took into consideration that, in that case, the responsibility of the state was “worsened by the circumstances under which the facts of the cas d’espèce took place”,33 i.e. “because at the time of the facts there was in guatemala a pattern of selective extra-legal executions fostered by the state, which was directed against those individuals who were considered ‘internal enemies’”,34 and to the date of the judgment there had not been “effective judicial mechanisms to investigate the

30 IActhr (Judgment) 25 november 2003, Myrna Mack Chang v. Guatemala, para. 301.31 Ibid., para. 116.32 Ibid.33 Ibid., para. 114. 34 Ibid., para. 139.


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human rights violations nor to punish those responsible, all of which gives rise to an aggravated international responsibility of the respondent state [emphasis added].”35

In this line, in his separate opinion, Judge cançado trindade held that those acts of an especially grave nature constitute international crimes of the state.36 Thus, a crime of state is defined as a grave violation of a peremptory norm.37 Peremptory norms are “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”38 such notion “is based upon an acceptance of fundamental and superior values within the system.”39 from this, Judge cançado trindade concludes that “when the international community professes certain fundamental and higher values, it is necessary to accept the consequence of establishment of a special regime of aggravated responsibility (associated with crimes of state).”40 consequently, he proposes that reparations can have a punitive function, in order to “ensure the realization of justice and to put an end to impunity.”41 he therefore refers to the institute of punitive damages as the logical consequence of the establishment of aggravated responsibility. While the institute has been applied in comparative domestic case law and the case law of international arbitration, he proposes a new notion of punitive damages, not necessarily in the sense of a pecuniary reparation, but as obligations to fulfill.42

Judge cançado trindade’s position on punitive damages is challenged by the reasoned concurring opinion of Judge garcía ramírez. he rejects the possibility of attributing the state criminal responsibility,43 and reaffirms that the IActhr cannot act in the sphere of criminal justice, which is reserved to the domestic jurisdiction.44 he remarks that “[t]he aggravated seriousness of the facts must certainly be taken into account when making the reproach that a judgment on human rights violations implies”, as well as in the decisions adopted by the domestic criminal jurisdiction.45 Although “it is perfectly possible that it [the aggravated seriousness] influences acts of non-pecuniary compensation”, this

35 Ibid.36 IActhr (reasoned opinion of Judge cançado trindade) 25 november 2003, Myrna Mack

Chang v. Guatemala, para. 7. 37 Ibid., para. 27. 38 Article 13, Vienna convention on the Law of treaties. 39 shaw, supra n. 1, p. 125.40 IActhr (reasoned opinion of Judge cançado trindade) 25 november 2003, Myrna Mack

Chang v. Guatemala, para. 31. 41 Ibid., para. 38. 42 Ibid., para. 49. 43 IActhr (concurring opinion of Judge garcía ramírez) 25 november 2003, Myrna Mack

Chang v. Guatemala, para. 34. 44 Ibid., para. 44. 45 Ibid., para. 46.


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does not mean that it should have any effect on patrimonial consequences.46 he explains that punitive damages were never awarded by the IActhr, “because it corresponds more to the idea of a fine than to that of the reparation of damage and, in any case, it would be payable by the treasury, which implies an additional burden for the taxpayer and also a reduction in the resources that should go towards social programs.”47

The position adopted by the IActhr in its majority decision was in fact that of Judge garcía ramírez, in open contradiction to Judge cançado trindade’s acceptance of a punitive function. In fact, the IActhr reaffirmed the principle of full restitution,48 and added that “[a]s the term suggests, reparations consist of measures that tend to make the effects of the violations committed disappear. Their nature and amount depend on the damage caused both at the pecuniary and non-pecuniary levels”,49 therefore denying any reparations that exceed a mere compensatory function.

4.2 . MASACRE DE PLAN DE SÁNCHEZ V. GUATEMALA (2004)

In 1982, members of the guatemalan Army and civilian collaborators, under the guidance of the Army, entered the village of Plan de sanchez, inhabited mostly by the maya indigenous people. They physically abused, raped and murdered girls and young women, and executed the older women, men and boys. The massacre resulted in the death of around 268 people. furthermore, the survivors and the next of kin of the victims were subject to denial of justice and other acts of intimidation and discrimination afterwards.

The IActhr accepted the acknowledgment of responsibility effectuated by the state of honduras, and found that it had violated Articles 5(1) and 5(2) (right to humane treatment), 8(1) (right to fair trial), 11 (right to privacy), 12(2) and 12(3) (freedom of conscience and religion), 13(2)(a) and 13(5) (freedom of thought and expression), 16(1) (freedom of association), 21(1) and 21(2) (right to property), 24 (right to equal protection) and 25 (right to judicial protection) of the Achr, and that it did not fulfil its obligation to respect the rights set forth in Article 1(1) (obligation to respect rights) thereof.50

In this decision, the IActhr was confronted with the question whether or not it could determine that such acts constituted genocide, in the terms of the convention on the Prevention and Punishment of genocide. The IActhr explained that it was only competent to find violations of the Achr and other

46 Ibid., para. 47.47 Ibid. 48 IActhr (Judgment) 25 november 2003, Myrna Mack Chang v. Guatemala, para. 236. 49 Ibid., para. 237. 50 IActhr (Judgment) 29 April 2004, Plan de Sánchez Massacre v. Guatemala, para. 52.


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instruments of the Inter-American system of human rights, but held that the specific circumstances of the case which “gravely affected the members of the maya-achí people in their identity and values and that took place within a pattern of massacres, constitute an aggravated impact that entails international responsibility of the state, which this court will take into account when it decides on reparations.”51

In his reasoned opinion, Judge cançado trindade considered that aggravated international responsibility of the state derived from those aggravating circumstances.52 he stated that the facts of the case amounted to a crime of state,53 and established a relation between the aggravated circumstances and the reparations awarded.54 This relationship implied that the reparations ordered as a consequence of aggravated responsibility, whether they were called punitive damages or not, had a double function: on the one side, a compensatory function, which was “to revert to the benefit of the victims”55 and “to re-build the affected social fabric”,56 and on the other side, a punitive function, i.e. to “recognize the extreme gravity of the facts”57 and “punish the state responsible for the grave violations committed.”58

The vote of the majority, however, did not refer to punitive damages, nor recognized any exemplary function in the reparations awarded. on the contrary, the decision of the majority specifically referred to the principle of full restitution and the necessary relation between the damage caused and the compensation paid.59

Therefore, the relation between aggravated circumstances and reparations does not seem to be a quantitative one, but a qualitative one. The determination of the existence of aggravated circumstances appears to have two consequences. first, the mere expression of such aggravated circumstances by a human rights court’s judgment constitutes per se a form of reparation, as the IActhr has stated.60 second, as Judge garcía ramírez explained in his reasoned opinion, the existence of aggravated circumstances has an effect on the nature of the reparations that the IActhr may order.61 Therefore, a harmonic interpretation of the IActhr’s allusion to “aggravated circumstances” and the principle of full compensation can be reached, by centring the analysis on the qualitative aspect

51 Ibid., para. 51 [emphasis added]. 52 IActhr (separate opinion of Judge cançado trindade) 19 november 2004, Plan de Sánchez

Massacre v. Guatemala, para. 6. 53 Ibid., para. 21.54 Ibid., para. 23. 55 Ibid.56 Ibid.57 Ibid.58 Ibid., para. 25. 59 IActhr (Judgment) 19 november 2004, Plan de Sánchez Massacre v. Guatemala, para. 53. 60 Ibid., para. 81. 61 IActhr (reasoned opinion of Judge sergio garcía ramírez) 29 April 2004, Plan de Sánchez

Massacre v. Guatemala, para. 21.


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instead of on the quantitative one. Whereas punitive damages would require a surplus, therefore breaching the principle according to which compensation depends on the effects of the violation committed, a qualitative approach would indicate that, in aggravated circumstances, pecuniary compensation is not enough, and other forms of non pecuniary reparation must be introduced. This seems to be the approach adopted by the IActhr in terms of the consequences of aggravated circumstances.

4.3. GóMEZ PALOMINO V. PERú (2005)

on 22 november 2005, the IActhr delivered its decision on the forced disappearance of mr gómez Palomino, which occurred in Perú in 1992. The IActhr found that Peru had violated, inter alia, Articles 7 (right to personal liberty), 4 (right to life), 5 (right to humane treatment), 8 (right to a fair trial) and 25 (right to judicial protection) of the Achr, all of them in relation to Article 1(1) (obligation to respect rights) thereof.62

Interestingly, in his reasoned opinion, Judge cançado trindade reiterated his position on the applicability of punitive damages under Article 63(1) of the Achr, and stated that “the provisions in Article 63(1) of the American convention on human rights effectively provide the Inter-American court with quite an amount of leeway regarding reparations. In my opinion, […] some reparations with dissuasive or exemplary purposes (related to aggravated liability) may contribute to the struggle against impunity and to guarantee non-repetition of harmful events.”63 Additionally, as already stated in Myrna Mack Chang v. Guatemala, the Brazilian judge proposed a broader definition of punitive damages. he stated that these “punitive damages lato sensu” were not limited to its pecuniary meaning,64 in contradiction to the traditional notion, as defined at the beginning of this article.65 he therefore implied that the measures of reparation adopted by the majority (such as granting education to siblings, sons and daughters of the victim) could be considered punitive damages as well, since their basic purpose was to recognize the extreme gravity of the events and to punish the state for the serious violations committed, among others.66 however, the IActhr made it

62 IActhr (Judgment) 22 november 2005, Gómez Palomino v. Perú, para. 162. 63 IActhr (concurring opinion of Judge cançado trindade) 22 november 2005, Gómez

Palomino v. Perú, para. 2.64 Ibid., para. 9.65 see gotanda, supra n. 8, p. 322.66 IActhr (concurring opinion of Judge cançado trindade) 22 november 2005, Gómez

Palomino v. Perú, paras. 10–11. see also IActhr (concurring opinion of Judge cançado trindade) 25 september 2006, Miguel Castro‑Castro Prison v. Peru, para. 55; IActhr (concurring opinion of Judge cançado trindade) 29 november 2006, La Cantuta v. Peru, para. 57.


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clear that its decision had no punitive purposes, but to provide the victims with a fair compensation in the terms of Article 63(1).67

4 .4. GOIBURú ET AL V. PAR AGUAY (2006)

similarly to the facts considered in Gómez Palomino, the IActhr faced in the case Goiburú et al v. Paraguay the forced disappearance of Agustín goiburú giménez, among other members of an opposing party to the dictatorship of stroessner matiauda, which occurred in 1977. The IActhr found that Paraguay was responsible for the violation of Articles 4(1) (right to life), 5(1) and 5(2) (right to humane treatment) and 7 (right to personal liberty) of the Achr, all of them in relation to Article 1(1) (obligation to respect rights).

The IActhr, in its majority vote, considered that such crimes took place “in the context of the flagrant, massive and systematic repression to which the population was subjected on an inter-state scale, because state security agencies were let loose against the people at a trans-border level in a coordinated manner by the dictatorial governments concerned”,68 making express reference to “operation condor”.69 even though such considerations seem to indicate, as the IActhr did in the case Myrna Mack Chang v. Guatemala, that the state incurred in aggravated international responsibility, the IActhr did not say so explicitly.

In relation to the obligation to repair, and as consistently held all along its case law, the IActhr considered that Article 63(1) contains “a principle of international law that any violation of an international obligation that has produced damage entails the obligation to repair it adequately”70 and that “[r]eparations consist of measures tending to eliminate the effects of the violations that have been committed.”71 It remarked that “[r]eparations should not make the victims or their successors either richer or poorer and they should be proportionate to the violations declared in the judgment.”72 hence, once again, the IActhr rejected any potential punitive function of reparations, and therefore, the application of punitive damages.

The separate opinions of Judges cançado trindade and garcía ramírez are evidence of an intense debate on this matter. on the one hand, cançado trindade

67 IActhr (Judgment) 22 november 2005, Gómez Palomino v. Perú, para. 112.68 IActhr (Judgment) 22 september 2006, Goiburú et al. v. Paraguay, para. 62.69 operation condor was “a secret intelligence and operations system created in the 1970s

through which the south American military states shared intelligence and seized, tortured, and executed political opponents in one another’s territory. Inspired by a continental security doctrine that targeted ideological enemies, the military states in the condor system engaged in terrorist practices to destroy the ‘subversive threat’ from the left and defend ‘Western, christian civilization’”. J.P. mcsherry, Predatory States: Operation Condor and covert war in Latin America (Lanham, rowman & Littlefield Publishers 2005), p. 1.

70 Ibid., paras. 139–140. 71 Ibid., para. 143.72 Ibid., para. 143.


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found that Paraguay had incurred in international responsibility “aggravated by state crime” because of the extreme grave content of its conduct.73 In this vein, he considered that, since international human rights law and international criminal law are complementary, exemplary damages should be applied as a guarantee of non-repetition.74 cançado trindade implicitly confirmed this position again in 2008, in the decision on Interpretation of the Judgment of Miguel Castro Castro Prison v. Peru.75

on the other hand, Judge garcía ramírez held that aggravated responsibility does not exist. he explained that simple “responsibility (without considerations of intensity or nuance) implies the possibility or need ‘to respond’ for certain acts owing to legal evidence of attribution that links specific conduct to a particular person who must respond for it juridically by the establishment of certain consequences.”76 Therefore, and since punitive damages would be – according to Judge cançado trindade – the logical consequence of aggravated international responsibility for state crimes, it could be concluded that, according to Judge garcía ramírez, exemplary or punitive damages do not fall within the scope of Article 63(1) of the Achr.

5. recent decIsIons

As mentioned above, cançado trindade held in his separate opinions that aggravated international responsibility of states is a requirement to grant punitive or exemplary damages. In this vein, two recent decisions have established the aggravated responsibility of states: Manuel Cepeda Vargas v. Colombia (2010), and Massacres of El Mozote And Nearby Places v. El Salvador (2012).

In the first case, colombia was accused of the extrajudicial execution of the communist senator manuel cepeda Vargas, in August 1994, in Bogota. Also, lack of due diligence in the investigation and punishment of all those responsible, obstruction of justice and failure to make adequate reparation to the victim’s next of kin was alleged.77 consequently, the IActhr declared “the aggravated responsibility of the state for the violation of the rights to life and personal integrity

73 IActhr (reasoned opinion of Judge cançado trindade) 22 september 2006, Goiburú et al. v. Paraguay, paras. 26, 30–31.

74 Ibid., paras. 39–44. on the complementarity between international human rights law and international criminal law, see also IActhr (reasoned opinion of Judge cançado trindade) 25 november 2003, Myrna Mack Chang v. Guatemala, paras. 14–20.

75 IActhr (reasoned opinion of Judge cançado trindade) 2 August 2008, Miguel Castro Castro Prison v. Peru, Interpretation of the Judgment on Merits, Reparations, and Costs, para. 22.

76 IActhr (reasoned opinion of Judge garcía ramírez) 22 september 2006, Goiburú et al. v. Paraguay, para. 4.

77 IActhr (Judgment) 26 may 2010, Manuel Cepeda Vargas v. Colombia, para. 2.


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established in Articles 4(1) and 5(1) of the convention, in relation to Article 1(1) thereof, to the detriment of senator manuel cepeda Vargas [emphasis added].”78

In the second case, the IActhr had to analyse successive massacres committed in 1981 by el salvador, in the context of a military operation performed by the Atlacatl Battalion, together with other units, during which about 1000 people were killed, including an alarming number of children. The state of el salvador acknowledged that the violations had taken place in a context of brutality, including murder, torture and rape of women and children.79 consequently, the IActhr declared the aggravated responsibility of el salvador.80

even though in both cases the IActhr found that the states had incurred in aggravated international responsibility, punitive or exemplary damages were not considered. In both cases, the IActhr applied the already mentioned principle of fair compensation, and stated that “any violation of an international obligation that has produced damage entails the obligation to provide adequate reparation.”81

The IActhr considered that such principle, recognized in Article 63(1), meant that reparations must be proportional to the violation incurred by the state. Thus, in Massacres of El Mozote and Nearby Places v. El Salvador, it was held that ceremonies carried out by el salvador as a measure of satisfaction were appropriate and proportionate to the severity of the violations whose reparation was sought.82 It also established a monetary amount for pecuniary and non-pecuniary damages based on the “nature and severity of the violations committed, the damage arising from the impunity, as well as the physical, moral and mental suffering caused to the victims”, recognizing that this was the criteria consistently adopted by the IActhr in its case law.83

concordantly, in the Manuel Cepeda Vargas v. Colombia case, the state had already compensated the victims. however, the IActhr affirmed that “[i]f these mechanisms do not satisfy criteria of objectivity, reasonableness and effectiveness to make adequate reparation for the violations of rights recognized in the convention that have been declared by this court, it is for the court, in exercise of its subsidiary and complementary competence, to order the pertinent reparations.”84 Therefore, the IActhr implied that compensation had to be proportional to the damage suffered, since it must only consider the objective elements, such as expenses incurred by the victims85 and mental and moral

78 Ibid., para. 126.79 IActhr (Judgment) 25 october 2012, Massacres of El Mozote and Nearby Places v. El Salvador,

para. 126.80 Ibid., para. 208.81 IActhr (Judgment) 25 october 2012, Massacres of El Mozote and Nearby Places v. El Salvador,

para. 302; IActhr (Judgment) 26 may 2010, Manuel Cepeda Vargas v. Colombia, para. 211.82 IActhr (Judgment) 25 october 2012, Massacres of El Mozote and Nearby Places v. El Salvador,

para. 357.83 Ibid., para. 384. 84 IActhr (Judgment) 26 may 2010, Manuel Cepeda Vargas v. Colombia, para. 246 [emphasis

added].85 Ibid., para. 247.


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integrity.86 This conclusion is ratified by the opinion of the former Vice-president of the IActhr.87

6. concLusIon

A dynamic interpretation of the IActhr’s case law, which takes into account the evolution of the IActhr’s opinion on the matter, allows us to reach the conclusion that punitive damages breach the principle of fair compensation enshrined in Article 63(1). In effect, the IActhr has never granted punitive or exemplary damages; on the contrary, it has consistently interpreted that reparations under Article 63(1) must be proportional to violations incurred by the state and to the damage effectively caused.

In the last years, the IActhr has accepted that states may incur in aggravated international responsibility as a consequence of the seriousness of the violations committed. however, it has never awarded punitive damages. In fact, the IActhr has repeatedly stated that reparations do not have a punitive function, but a compensatory one, and that, in any case, the imposition of sanctions exceeded the competence of the IActhr.

despite the rich debate that has taken place, especially because of the separate opinions of Judges cançado trindade and garcía ramírez, it must be noted that punitive damages, in the terms of “sums awarded apart from any compensatory or nominal damages”,88 have never been accepted by the IActhr, nor even by Judge cançado trindade.

In effect, although at first view it would seem that Judge cançado trindade advocated for the application of punitive damages, he nonetheless used this term in order to define reparations of a non-pecuniary nature. In that sense, the concept of punitive damages lato sensu proposed by the Judge is conceptually different to the traditional notion. Ergo, the position of Judge cançado trindade cannot be considered as evidence of the acceptance of punitive damages in the case law of the IActhr.

moreover, it would seem that the three competing positions (the one of the majority, the position of Judge cançado trindade, and the one of Judge garcía ramírez), actually lead to the same consequences, although they reach these through different paths. on the one side, according to Judge cançado trindade, aggravated responsibility gives rise to punitive damages lato sensu, which according to him are non-pecuniary sanctions. on the other side, the IActhr

86 Ibid., para. 252.87 m.e. Ventura robles, “La ejecución de las sentencias de la corte Interamericana de derechos

humanos Por Parte de los tribunales nacionales”, san José de costa rica, 30 september 2009, <sitios.poder-judicial.go.cr/salaconstitucional/articulos%20y%20conferencias/seminario_ 20aniversario/006.pdf>, p. 8.

88 gotanda, supra n. 8.


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has determined the existence of aggravated responsibility in some cases, and as a consequence has deemed necessary the application of certain non-pecuniary forms of reparations, such as, for example, the express mention in the judgment of the aggravated nature of the violations committed by the state as a form of reparation. finally, Judge garcía ramírez, although rejecting the notion of aggravated responsibility, has considered that, in the presence of serious violations of human rights, it is necessary to address the issue of reparations through both pecuniary and non-pecuniary forms of reparations. Therefore, it would seem that the real debate is not whether punitive damages could be applied or not, but whether or not non-pecuniary forms or reparations are compensatory or punitive in nature.

taking into account all that has been detailed, it can be affirmed that punitive damages have never been considered by the IActhr, and such position is not likely to change in the future. In the words of the former Vice-president of the IActhr: “the payment of fair compensation must ‘[...] compensate, as far as possible, the loss suffered’. This means the rejection of pretensions of ‘exemplary or dissuasive’ indemnifications, known among scholars as punitive damages.”89

89 Ventura robles, supra n. 87.


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