4
legality is a component of the concept of the rule of law, it is also true that this is not
identified with just any type of legality, but with a legality that does not harm certain
values for and on behalf of which the legal system was constituted […] and which are
expressed in norms or principles that the law cannot violate. After all, the rule of law
emerges from the essence of iusnaturalism […], precisely with a legality designed to
safeguard certain values […], certain rights believed to be natural […]. It was only later
that the comprehensive development of legal positivism separated from this underlying
connection leading to a full and conscious identification of the law with laws, and of the
rule of law with the lawful State […].”9
13.
Hence the emergence of the authoritarian, repressive and fascist regimes. In
the historical perspective of human thought, the Hegelian opposition to
iusnaturalism10 made a significant contribution towards this degradation, with fateful
consequences: the “glorification��� of the State, transformed into an end in itself, the
final depositary of human freedoms, “alpha and omega,” justifying the excesses of
nationalism with an emphasis on “national security” and fascism (as denounced in
Ernst Cassirer’s acute and penetrating analysis11 and in the reflections of Alf Ross12),
in the context of which grave human rights violations and successive atrocities were
committed.
14.
But the rebirth of iusnaturalism – which, in reality, never ceased to exist – as
of the middle of the twentieth century testified to the impossibility of disregarding
the human conscience, the universal juridical conscience – ultimate material source
of all law – which today rises up against the indifference and the impunity of those
responsible (both States and individuals) for those atrocities and crimes against
humanity that have made victims of thousands and thousands of persons in the
countries of the Southern Cone of Latin America alone – to which can be added so
many other crimes against humanity and acts of genocide perpetrated in recent
decades on other continents (Europe, Africa and Asia).
15.
This judgment of the Court acknowledges that the proven facts constitute a
clear situation of State terrorism. The Court also acknowledged the frightening
inversion of the purposes of the State that this has implied (constituting, once again,
in my opinion, the somber contraposition of the State and the nation). In the words
of the Court:
“[…] The institutions, mechanisms and powers of a State should function as a
guarantee of protection against the criminal activities of its agents. However, it has been
verified that the State’s power was orchestrated as a means and resource to violate
rights that should have been respected and safeguarded, and actions were implemented
using the inter-State collaboration described above. In other words, the State became
the principal factor in the grave crimes committed, constituting a clear situation of ‘State
terrorism.’
In Paraguay, this situation has been recognized by the convergence of decisions
adopted by the three branches of the State; the Executive, by acknowledging the State’s
international responsibility in this international jurisdiction and, previously, its
Legislature and Judiciary” (paras. 66 and 67).
9
.
M. García-Pelayo, Las Transformaciones del Estado Contemporáneo, 2nd ed. (10th reprint), Madrid,
Alianza Edit., 1996, pp. 52-53.
10
.
11
G. Radbruch, Filosofía del Derecho, 4a. ed. rev., vol. I, Coimbra, A. Amado Ed., 1961, p. 77.
.
319.
E. Cassirer, El Mito del Estado, 2a. ed., México/Bogotá, Fondo de Cultura Económica, 1996, pp. 311-
12
A. Ross, Sobre el Derecho y la Justicia, 2a. ed., Buenos Aires, EUDEBA, 1997, pp. 314-315.
.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents