7
19.
At the conceptual level, I ultimately do not see how not to admit in general
international law that crimes of State occur, especially insofar as there is intent (fault
or blame), or tolerance, acquiescence, negligence, or omission, by the State in
connection with grave violations of human rights and of International Humanitarian
Law committed by its agents, even on behalf of a State policy.
Under said
circumstances, societas delinquere potest.
20.
In Law, every person constitutes a center or unit of imputation. In the case of
physical persons, it is the concrete and living unit of each human being, while the legal
person, a creation or construction of the Law, is also a center or unit of imputation for
the conduct of individuals acting on its behalf, and for the consequences for which the
legal person, as well as its agents, must answer. In brief, the legal personality of a
collective entity (such as the State) is a construction of the Law, and it constitutes a
unit of imputation for its conduct, carried out by the individuals who compose said
collective entity and who act in its behalf; thus, both the legal person and said
individuals must answer for the consequences of their acts or omissions,22 especially
when they bring about grave violations of human rights and of International
Humanitarian Law. In my view, international responsibility of the State and the
international criminal responsibility of the individual are not mutually exclusive but
rather complementary and inexorably intertwined.
IV.
Types of Culpability and Crimes of State
21.
This leads me to some brief reflections on the typology of culpability and, in this
framework, the definition of crimes of State. In his masterly monograph, The question
of guilt, the upright juridical philosopher Karl Jaspers established a distinction among
four types of culpability: a) criminal culpability, resulting from acts that objectively
abridge unequivocal laws, and that are provable before a court of law; b) political
culpability, resulting from actions of rulers, of the State, for which those governed are
responsible, because “every person is co- responsible for how he is governed;” c) moral
culpability, resulting from the actions of each individual, with his own conscience as the
jurisdiction; and d) metaphysical culpability, which K. Jaspers commented on as
follows:
"There is a solidarity among men as such that makes each one responsible for all
wrongdoing and all injustice in the world, especially of crimes that happen in their
presence or with their knowledge. If I do not do what I can to impede them, I am also
guilty.” 23
22.
By expressly invoking natural law in his study,24 K. Jaspers considered that
“where power does not set limits on itself, violence and terror dominate, and ultimately
the annihilation of existence and of the soul.”25 The great thinker admitted the
existence of collective guilt (as the political responsibility of the citizens), “but not, by
this, in the same form as moral and metaphysical guilt and not as criminal guilt.”26 For
22
.
In this regard, Luis Recaséns Siches, Tratado General de Filosofía del Derecho, 16ªth. ed., Mexico,
Ed. Porrúa, 2002, p. 272.
23
.
Karl Jaspers, El Problema de la Culpa, Barcelona, Ed. Paidós/Universidad Autónoma de Barcelona,
1965 [repr. in Spanish, 1998], pp. 53-54.
24
Cf. K. Jaspers, op. cit. supra n. (17), pp. 58 and 75.
25
Ibid., pp. 55-56.
.
.
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