18
beyond the purely monetary sense to them improperly awarded (in certain national
jurisdictions), as certain reparation duties that the liable States must assume by criminal
acts or practices; said duties may configure an adequate response or reaction of the
legal system against the State crime.
They are obligations to perform. And, among these, there is the obligation to
identify, trial and punish the perpetrators of State crimes who, by their acts (or
omissions), incurred in international criminal liability, apart from compromising the
international liability of their State, in the name of which they acted (or omitted), in the
execution of a criminal State policy. It is not the case of purely individual acts (or
omissions), but a criminality organized by the State itself. Consequently, it becomes
necessary to take jointly into account, the criminal international liability of the
individuals involved as well as the international liability of the State, essentially
supplementary; the aggravated international responsibility of the State in question
corresponds to the State crime”; (paras. 52-53 and 55-56).
58.
In cases such as this one, where the State power apparatus was improperly
used to commit State crimes (in a shocking distortion of the State purposes),
constituting inadmissible violations of the jus cogens, to then conceal said crimes
and keep its agents -perpetrators of those crimes- in impunity, and the victims´ next
of kin (also victimized) in the most complete desolation and desperation, -in cases as
those of La Cantuta and Barrios Altos, in which the crimes against human rights were
perpetrated in the context of a proven practice by the State,- the patient
reconstitution and determination of the facts by this Court constitute, themselves,
one of the ways of providing satisfaction - as a form of reparation - owed to the
victims´surviving next of kin (who are also victims), and a way to honor the memory
of the deceased victims.
59.
The jus cogens resists State crimes, and imposes sanctions to them, by virtue
of the prompt commitment of the international aggravated liability of the State. As a
consequence of said crimes, the owed reparations assume the way of different
obligations to perform, including the investigation, trial and punishment of those
responsible for the perpetration of the State crimes (by action or omission). The Law
does not cease to exist by the violation of its rules, as the “realists” expect to
insinuate, degenerated by their inevitable and pathetic idolatry for the established
power. Very much on the contrary, the imperative law (jus cogens) immediately
reacts against those violations, and it imposes sanctions.
60.
For years, within this Court, I have insisted upon the need to recognize and
identify the jus cogens, and I have elaborated, in several Opinions (both in
adversarial and in consulting functions for the Court), the doctrinal construction of
the application of the material content of the jus cogens and the corresponding erga
omnes obligations of protection, in both their horizontal (vis-à-vis the international
community as a whole) and vertical (encompassing the relations of the individual
with the public power and with non-State entities and other individuals). With this,
under the American Convention, the concept of “victim” itself has evolved and
expanded, and so have the parameters of protection owed to the justiciable ones and
the circle of protected people.
61.
I feel grateful because the Court has adopted my reasoning, which today is an
acquis, a conquest of its jurisprudence constante on the matter. Now that my time
as Incumbent Judge of this Court expires, a Court which has assumed a vanguard
position among the contemporary international courts regarding to this matter in
particular, I feel entirely free to point out that this is an advance that admits no
steping back. I insist (considering that very soon, on January 1, 2007, the time to
silence in my present office shall come) that this Court cannot let itself stop or
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents