7
22.
I cannot refrain from recording my dissatisfaction on this specific point. As I
indicated in my separate opinion in the very recent Servellón et al. v. Honduras
(judgment of yesterday, September 21, 2006), when this also happened, “the public
hearing that did not take place, would certainly have enhanced three aspects of this
judgment: (a) it would have enriched the case file and the preparation of the case
(particularly, in view of the positive attitude of procedural collaboration assumed by
the State); (b) it would have fully applied the adversarial principle as regards the
context of this case, and (c) it would have served as satisfaction (as a form of
reparation) to the victims’ next of kin” (para. 3). The Court deprived itself of
additional probative elements that could have enhanced this judgment (particularly
its chapter IX on the State’s international responsibility in the context of the instant
case), and missed a unique opportunity to make new contributions to the clarification
of the somber “Operation Condor” in the context of the instant case.
23.
Consequently, I consider that chapter IX of this judgment is unsatisfactory
because the Court could and should have gathered additional elements with greater
care and time. However, it has been proved that the instant case fits within a policy
of State terrorism that victimized, in the cruelest and most brutal way, thousands of
individuals and their next of kin in the countries that established “Operation Condor,”
which even allowed grave human rights violations to be committed
“extraterritorially,” in other countries and on other continents.
How can the
existence of State crime be denied in the face of a State policy of extermination?
24.
It is solely in the heads of “illuminated” international jurists that State crime
does not exist, when they affirm dogmatically that the State cannot commit a crime,
period. They continue to ignore episodes such as those of the instant case, which
have been historically proved, and other cases of massacres heard and judged by the
Inter-American Court (for example, the cases of the massacre of Barrios Altos, the
Plan de Sánchez Massacre, the massacre of the 19 Tradesmen, the Mapiripán
Massacre, the massacre of the Moiwana Community, the Pueblo Bello Massacre, and
the Ituango Massacres), and murders planned at the highest levels of State power
(for example, the Barrios Altos, and Myrna Mack Chang cases), where the defendant
States have even acknowledged their international responsibility for the facts.
25.
Something does not cease to exist merely because someone affirms that it
cannot exist. International jurists cannot remain indifferent to the human suffering
evident from proven historical facts. While contemporary international legal doctrine
insists in denying what has been proved historically – the crimes committed by the
State – it will be eluding an extremely serious issue, with its juridical consequences,
compromising its own credibility. My dissatisfaction it not restricted to the doctrinal
level, as I have indicated above, it also encompasses the procedural level; in other
words, the procedure followed by the Court in this case.
IV.
International responsibility aggravated by State crime
26.
State crime within the framework of “Operation Condor” has been described
well in a recent study in that regard, published in several languages:
“’Operation Condor’ […] represents the worst and final deviation of the rule of law
and civilized society. The most senior authorities of several countries agreed to
cooperate in State terrorism; in other words, in addition to failing to protect the human
rights of their own citizens, they conspired to violate international protection norms: the
right of asylum, the protection of refugees, habeas corpus, and the carefully elaborated
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