14
by the growing number of publications by the survivors of massacres that were State
crimes.
42.
There is irrefutable historic evidence that broad segments of the population
acquiesced to and, at times, participated in some of the most serious State crimes
(as a result of a prolonged process of indoctrination, at times intergenerational, and
of propaganda on a vast scale). 59 I am not trying to suggest that this is a common
trait of all State crimes; however, I do maintain that State crimes, planned and
executed by the State and perpetrated in keeping with State policies (which vary in
each case), can be attributed to the State as a juridical person of international public
law, and entail unavoidable judicial consequences for the State (such as punitive
damages, as a form of reparation).
43.
In my opinion, the State does not constitute an “abstract entity” – as some
traditional international and criminal legal doctrine insists – particularly, in the case
of the perpetration of international crimes and offenses. It assembles a whole
structure of repression and violence, within the framework of which international
illegal acts are committed. One factor that has not been noted – or has been
insufficiently taken into account to date – relates to the considerable difficulty of
dismantling or “demobilizing” these different structures (for example, secret police,
information and “intelligence” or informer services, death squads, “paramilitary
groups,” civil patrols, police battalions, State security agents, clandestine prisons,
and other similar ones). 60
44.
But this is almost never mentioned. The truth is that crimes have been
committed using these structures of repression, not only in the name of the State,
but by the State itself, through its own agents or third parties supported by the latter
(the “procurement” of cruelty). And they have been committed with the tolerance or
acquiescence of society at times. In short, contrary to what has been thought over
recent centuries, “the king can - indeed - do wrong”, and societas delinquere potest.
VI.
The right of access to justice lato sensu and the indivisibility
between Articles 25 and 8 of the American Convention.
45.
Another of the central issues examined by the Court in this judgment is
access to justice lato sensu, consubstantiated in the indivisibility between Articles 25
and 8 of the American Convention, which I have been maintaining within this Court
for many years. In this regard, in my recent and extensive separate opinion in the
Pueblo Bello Massacre v. Colombia (judgment of January 31, 2006), I dealt, in a
Escuadrones de la Muerte en El Salvador, 2nd ed., San Salvador, Edit. Jaraguá, 2004, pp. 11-300; and cf.
also A. Guadalupe Martínez, Las Cárceles Clandestinas, 8th ed., San Salvador, UCA Edit., 2004, pp. 27456; S. Carranza (ed.), Mártires de la UCA, 6a. ed., San Salvador, UCA Edit., 2001, pp. 15-457; J.M.
Tojeira, El Martirio Ayer y Hoy - Testimonio Radical de Fe y Justicia, 2nd. ed., San Salvador, UCA Edit.,
2005, pp. 29-187; L. Binford, El Mozote: Vidas y Memorias, San Salvador, UCA Edit., 2005, pp. 15-338.
59
.
D.J. Goldhagen, Hitler's Willing Executioners - Ordinary Germans and the Holocaust, N.Y.,
Vintage, 1997 [re-ed.], pp. 5 ff.
60
.
Cf. A.A. Cançado Trindade, "General Course on Public International Law - International Law for
Humankind: Towards a New Jus Gentium", 316 Recueil des Cours de l'Académie de Droit International de
La Haye (2005), chap. XV (to be published).