14
admitted that the responsibility of the State can be both objective and absolute, and
under certain circumstances can also be based on fault or blame.49
40.
In point of fact, even admitting the principle of objective or absolute
responsibility of the State (as the Inter-American Court has rightly done in the case of
“The Last Temptation of Christ” versus Chile, 2001), this does not mean that
responsibility based on fault or blame is totally dismissed under any and all hypotheses
or circumstances. There are cases –as in the instant Myrna Mack Chang versus
Guatemala case- in which the intention of the State to cause harm or its negligence in
avoiding it can be proven; fault or blame then becomes, here, the indispensable basis
for responsibility of the State,50 aggravated by that circumstance.
VIII. The Juridical Consequences of Crimes of State: Aggravated
International Responsibility and the Nature and Scope of the
Reparatio.
41.
Aggravated responsibility is, precisely, that which is consistent with a crime of
State. The renowned Article 19 of the State Responsibility Project (1976) of the ILC
(supra), in its provision regarding “international crimes,” precisely had in mind the
determination of an aggravated degree of responsibility for certain violations of
international law.51 It did not in any way intend to suggest an analogy with categories
of domestic criminal law. Once aggravated responsibility has been accepted, its
juridical consequences must be established.
42.
Already in 1939, long before becoming the rapporteur of the ILC on
International Responsibility of the States, Robert Ago reflected that the same material
fact may be apprehended by different rules within the same juridical order, ascribing
juridical circumstances to it that are also different, generating the obligation to provide
reparation or legitimizing application of a punishment.52 It may thus require either the
obligation to provide reparation, or application of a punishment, or both
simultaneously; for R. Ago, “punishment and reparation may thus exist side by side, as
effects of the same crime.”53
43.
The same juridical fact can, thus, give rise to different consequences, such as
reparation and punishment. For an especially grave illegal act (e.g. a grave violation of
human rights or of International Humanitarian Law), compensatory reparation (for the
victim or the victim’s next of kin) may not be sufficient, in which case a punitive
reparation (e.g., investigation of the facts and punishment of those responsible) may
be required. Both may be necessary for the realization of justice.
49
Ibid., pp. 122-123.
50
Cf., in this regard, H. Lauterpacht, op. cit. supra n. (34), pp. 359-361 and 364.
.
.
51
.
I. Sinclair, "State Responsibility: Lex Ferenda and Crimes of State", in International Crimes of State
(eds. J.H.H. Weiler, A. Cassese and M. Spinedi), Berlin, W. de Gruyter, 1989, p. 242.
52
.
Roberto Ago, "Le délit international", 68 Recueil des Cours de l'Académie de Droit International de
La Haye (1939) pp. 424 and 426.
53
.
Ibid., pp. 428-429.
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