2
subsequently sought to object to said acts in the Mapiripán Massacre being attributed
to the State itself. The Court noted that
"while the acts that took place between July 15 and 20,1997, in
Mapiripán, were committed by members of paramilitary groups, the
massacre could not have been prepared and carried out without the
collaboration, acquiescence, and tolerance, expressed through several
actions and omissions, of the Armed Forces of the State, including high
officials of the latter” (para. 121).
9.
Then, analyzing the facts acknowledged by the respondent State in the cas
d'espèce, the Court stated that
"it clearly follows that both the behavior of its own agents and
that of the members of the paramilitary groups are attributable to the
State insofar as they in fact acted in a situation and in areas that were
under the control of the State. In point of fact, the incursion by the
paramilitary in Mapiripán was an act planned several months before
July 1997, carried out with full knowledge, logistic preparations and
collaboration by the Armed Forces, who enabled the paramilitary to
leave Apartadó and Neclocí toward Mapiripán in areas that were under
its control, and left the civilian population defenseless during the days
of the massacre by the unjustified transfer of the troops to other
places” (para. 121).
10.
A State is found to be internationally responsible by means of a judicious
mental operation by the members of a competent international judicial body, after
carefully establishing the facts of the concrete case; it is not merely the mechanical
application of given formulations of precepts that, in any case, are suppletory in
nature.2 Regarding the subject matter under examination, I wish to refer here to a
reflection that guided the past work of the United Nations International Law
Commission (ILC) on attributing a conduct to the State with the purpose of
establishing its international responsibility.
11.
In his substantive fourth (1972) Report on “The Internationally Unlawful Act
of the State, a Source of International Responsibility”, the former rapporteur of the
ILC on this subject, Roberto Ago3, judiciously reflected that
"It would be useless to object, as writers have often done, that
only States are subjects of international law and that therefore only
they can violate the obligations imposed by that law. Apart from the
fact that such an objection would be begging the question, the cases
referred to here are not cases of so-called international responsibility
of individuals, but cases of international responsibility of the State.
Since the action of the private individual would be attributed to the
.
No matter how pertinent it may be to consider, with the aim of attributing said responsibility, the
provisions set forth in Articles 8 and 9, and partly in Article 11, of the 2001 ILC Articles on the
International Responsibility of the States –even more so in face of the acknowledgment of international
responsibility made by the State regarding “the acts that took place in Mapiripán in July 1997.”
2
.
In addition to Roberto Ago (rapporteur on this topic for the ILC from 1963 to 1979) we should
mention other distinguished jurists who also acted as rapporteurs on this matter at the ILC, both the
previous one, F.V. García Amador (1955-1961), and subsequent ones (W. Riphagen, 1979-1986), G.
Arangio-Ruiz (1987-1996) and J. Crawford (1997-2001).
3
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