13
in implementation – evidently wrongful – of a State policy (the so-called “war [sic] 55
on terror”). Since its judgments in Cantoral Benavides v. Peru (of August 18, 2000,
paras. 95-96) and Maritza Urrutia v. Guatemala (of November 27, 2003, para. 89),
the Inter-American Court has consistently maintained the absolute prohibition of
torture and ill-treatment, under any circumstances, including war, threat of war,
counter-terrorism activities, internal conflicts, or internal states of emergency or
instability.
39.
Throughout the centuries, it has been the thinkers and poets, rather than the
jurists, who have warned of the absurdity and the criminality of war. Here, I would
like to recall the alert sounded by three nineteenth-century authors who dealt with
the issue with particular lucidity. In "Russia 1812", Victor Hugo, wrote:
"They were no longer living men and troops,
but a dream drifting in a fog, a mystery,
mourners parading under the black sky".
40.
While, in "The Charge of the Light Brigade", Lord Tennyson lamented that:
"Their's not to make reply,
Their's not to reason why,
Their's but to do and die".
And, finally, Stephen Crane, wrote penetratingly:
"These men were born to drill and die.
The unexplained glory flies above them, (...)
A field where a thousand corpses lie. (...)
These men were born to drill and die.
Point for them the virtue of slaughter,
Make plain to them the excellence of killing
And a field where a thousand corpses lie" 56.
41.
Successive State crimes – those that have already been identified and
proved, and those that are not yet known – continue to occur, before the complacent
and indifferent eyes of most contemporary international jurists. State crimes have
not ceased to exist because they affirm that State crime does not and cannot exist.
To the contrary, State crime does exist and should not exist, and international jurists
should make an effort to combat and sanction it as such. Most contemporary
international legal doctrine has been omissive, by seeking to elude the issue. 57 It
cannot continue to do so, because to ensure non-repetition the atrocities have
fortunately been examined in recent reports 58 and the memory has been preserved
55
.
A term inadequately used with ominous consequences.
56
.
Texts in: The Oxford Book of War Poetry (ed. J. Stallworthy), Oxford, University Press, 2003
[reed.], pp. 89, 115 and 132, respectively.
57
.
The best thing the United Nations International Law Commission could do, in my opinion, would
be to re-open, in 2007-2008, its consideration of its articles on international State responsibility, abandon
the strictly State-centered and anachronic cosmovision that permeates them, remove the dust from and
rescue the concept of State crime, and once again include it in the said articles, with the legal
consequences (punitive damages). By doing this, the said work of the ILC would, I believe, gain in
credibility and provide a service to the international community and, ultimately, to all humanity.
58
.
Cf. collections: Masacres - Trazos de la Historia Salvadoreña Narrados por las Víctimas, 1a. ed.,
San Salvador, Ed. Centro para la Promoción de Derechos Humanos "M. Lagadec", 2006, pp. 17-390; Los