11
such as those of obligations erga omnes, pertinent to jus cogens.42 Consequently,
the classic vision of a single, undifferentiated regime of international responsibility no
longer corresponds to the actual stage of evolution of the issue in contemporary
international law.43 In my opinion, the current search for a normative and conceptual
hierarchy in the international legal order (illustrated by the establishment of jus
cogens) has established aggravated international responsibility in cases of
particularly grave human rights violations and international crime with all its legal
consequences. Owing to their particular gravity, international crime and violations of
jus cogens affect the basic values of the international community as a whole.44
VI.
Existence of State Crime
34.
Aggravated responsibility is precisely the responsibility that corresponds to a
State crime, even though this is not an attempt to suggest an inadequate analogy
with categories of domestic criminal law. The facts of this Case of Plan de Sánchez
Massacre speak for themselves, eloquently, revealing that State crime does exist,
even though part of international juridical doctrine, clinging to the dogmas of the
past, seeks to deny or elude this. State crime, entailing aggravated international
responsibility directly affects the fundamental values of the international community
as a whole.
35.
From this perspective, State crime is a grave violation of peremptory
international law (jus cogens). State crime becomes even more evident to the extent
that it is established by the State’s intention (act or omission) or tolerance,
acquiescence, negligence or omission in relation to grave violations of human rights
and international humanitarian law perpetrated by its agents, even in the name of a
State policy.
36.
Here, the principle of the objective and absolute responsibility of the State
gives way to responsibility based on act or omission, provided that the State’s
intention to cause damage or its negligence in avoiding such damage can be shown –
as in the instant Case of Plan de Sánchez Massacre. As in the Case of Myrna Mack
Chang, here, the act or omission becomes the essential conceptual basis for the
State’s responsibility, aggravated by this circumstance. As I mentioned in my
separate opinion in the Case of Myrna Mack Chang:
"Crimes of State are much more than a possibility; as the facts of the cas
d'espèce show, they are a reality. As long as attempts to evade the issue continue,
contemporary international juridical doctrine will continue to succumb to the specter of
State sovereignty, and it will continue to hold back the evolution of the law of nations in
our days. As long as its existence continues to be denied, the human person, the
ultimate one entitled to its inherent rights, and prior and superior to the State, will be
denied protection and exercise of said rights, first of all the right to justice; the human
person will also be denied reparations for abridgments of those rights.
As long as its existence continues to be denied, the State – hostage to a
deformed structure of repression and impunity - will be deprived of its principal aim, the
realization of the common weal. As long as its existence continues to be denied, in the
midst of an empty semantic imbroglio (which distracts attention from the central issue,
which is the need to ensure that justice prevails), the Law itself will be deprived of its
42
V. Starace, "La responsabilité résultant de la violation des obligations à l'égard de la communauté
internationale", 153 Recueil des Cours de l'Académie de Droit International de La Haye (1980) p. 205.
43
44
Ibid, pp. 274-275, and cf. pp. 289, 297 and 308.
C. Tomuschat, "Obligations Arising for States without or against Their Will," 241 Recueil des
Cours de l'Académie de Droit International de La Haye (1993) p. 224, and cf. p. 307.
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