11
31.
It is, then, appropriate to rescue the approach to this matter that bears in mind
the fundamental or higher interests of the international community, which has led to
the definition of crimes of State, with their own specificity in international law.
Moreover, we must always bear in mind the fundamental principles of the law, without
which the juridical order simply is not realized and it ceases to exist as such. As I
stated in my Concurring Opinion in the recent Advisory Opinion No. 18 of the InterAmerican Court of Human Rights, on the Juridical Status and Rights of Migrants without
Documents (of 17.09.2003):
- “Every legal system has fundamental principles that inspire, permeate and shape their
provisions. These are the principles (...) that, evoking the first causes, sources or origins of
provisions and rules, give cohesion, coherence, and legitimacy to the legal provisions and
to the legal system as a whole. They are the general principles of law (prima principia)
that give the legal order (...) its inevitable axiological dimension; they reveal the values
that inspire the whole legal order and that, ultimately, provide its very foundations. This is
how I conceive the presence and position of principles in any legal order, and their role in
the conceptual universe of the Law. (...) Provisions and rules issue from the prima
principia and find their meaning in them. The principles are thus present in the origins of
the Law itself” (paras. 44 and 46).
32.
In that same Separate Opinion, I added that the abuse and atrocities suffered
by so many human beings everywhere “have ultimately awakened the universal
juridical conscience to the urgent need to reconceptualize the very foundations of the
international juridical order” (para. 25), and progress of this order is in accordance with
the rise of human awareness of the need for realization of the common weal and of
justice (para. 26). In this same vision, the definition both of crimes of State, based on
establishment of an especially grave violation of international law, and of the
respective forms of reparation, as compensations and punishments at the same time
(cf. infra), are inescapably linked to the evolution of an international community with
greater integration and solidarity, aware of the basic principles and the higher values
that it must preserve and that must guide it.42
VI.
The act of invoking the international responsibility of the State by
the Human Being as a Subject of International Law.
33.
In the instant Judgment in the Myrna Mack Chang versus Guatemala case, the
Inter-American Court, when it found a violation of the rights to fair trial and to judicial
protection to the detriment of the immediate next of kin of Myrna Mack Chang, ruled
that the “military intelligence operation of the Presidential General Staff,” which
generated her murder, also “sought to conceal the facts and sought impunity of those
responsible, and to this end, with tolerance by the State, it resorted to all types of
means, including harassment, threats and murders of those cooperating with the
courts. All this has affected the production of evidence and independence of the
judiciary, has delayed the criminal proceeding, and has a negative impact on the
development of this proceeding” (para. 216). In the instant Judgment of the Court,
both Myrna Mack Chang and her immediate next of kin have been deemed the victims
of the aforementioned violations of rights.
42
.
R. Besné Mañero, El Crimen Internacional - Nuevos Aspectos de la Responsabilidad Internacional de
los Estados, Bilbao, Universidad de Deusto, 1999, pp. 140 and 185-186.
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