17
consists in the lato sensu “punitive damages,” these being conceived beyond the purely monetary
sense to them improperly awarded (in certain national jurisdictions), as certain reparation duties
that the liable States must assume by criminal acts or practices; said duties may configure an
adequate response or reaction of the legal system against the State crime.
They are obligations to perform. And, among these, there is the obligation to identify,
trial and punish the perpetrators of State crimes who, by their acts (or omissions), incurred in
international criminal liability, apart from compromising the international liability of their State, in
the name of which they acted (or omitted), in the execution of a criminal State policy. It is not
the case of purely individual acts (or omissions), but a criminality organized by the State itself.
Consequently, it becomes necessary to take jointly into account, the criminal international liability
of the individuals involved as well as the international liability of the State, essentially
supplementary; the aggravated international responsibility of the State in question corresponds
to the State crime”; (paras. 52-53 and 55-56).
58.
In cases such as this one, where the State power apparatus was
improperly used
to commit State crimes (in a shocking distortion of the State purposes), constituting
inadmissible violations of the jus cogens, to then conceal said crimes and keep its agents perpetrators of those crimes- in impunity, and the victims´ next of kin (also victimized) in
the most complete desolation and desperation, -in cases as those of La Cantuta and Barrios
Altos, in which the crimes against human rights were perpetrated in the context of a proven
practice by the State,- the patient reconstitution and determination of the facts by this
Court constitute, themselves, one of the ways of providing satisfaction - as a form of
reparation - owed to the victims´surviving next of kin (who are also victims), and a way to
honor the memory of the deceased victims.
59.
The jus cogens resists State crimes, and imposes sanctions to them, by virtue of the
prompt commitment of the international aggravated liability of the State. As a consequence
of said crimes, the owed reparations assume the way of different obligations to perform,
including the investigation, trial and punishment of those responsible for the perpetration of
the State crimes (by action or omission). The Law does not cease to exist by the violation of
its rules, as the “realists” expect to insinuate, degenerated by their inevitable and pathetic
idolatry for the established power. Very much on the contrary, the imperative law (jus
cogens) immediately reacts against those violations, and it imposes sanctions.
60.
For years, within this Court, I have insisted upon the need to recognize and identify
the jus cogens, and I have elaborated, in several Opinions (both in adversarial and in
consulting functions for the Court), the doctrinal construction of the application of the
material content of the jus cogens and the corresponding erga omnes obligations of
protection, in both their horizontal (vis-à-vis the international community as a whole) and
vertical (encompassing the relations of the individual with the public power and with nonState entities and other individuals). With this, under the American Convention, the concept
of “victim” itself has evolved and expanded, and so have the parameters of protection owed
to the justiciable ones and the circle of protected people.
61.
I feel grateful because the Court has adopted my reasoning, which today is an
acquis, a conquest of its jurisprudence constante on the matter. Now that my time as
Incumbent Judge of this Court expires, a Court which has assumed a vanguard position
among the contemporary international courts regarding to this matter in particular, I feel
entirely free to point out that this is an advance that admits no steping back. I insist
(considering that very soon, on January 1, 2007, the time to silence in my present office
shall come) that this Court cannot let itself stop or regress its own jurisprudence regarding
imperative law (jus cogens) within this scope of protection of the human being, regarding
both substantive and procedural law.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents