4
12.
We have heard of State policies systematically directed against certain ethnic
minorities, to the point of damaging the crucial and beneficial communication
between the surviving next of kin and their dead, in an attempt to destroy their
culture. This has led me to propose, for the first time in legal doctrine (at least, as
far as I know), in my extensive separate opinion 7 in the Moiwana Community v.
Suriname (judgment of June 15, 2005), the concepts of after-life project, above and
beyond the life project, and of spiritual damage, above and beyond moral damage,
with their own juridical content.
13.
What else is there to hear concerning an individual’s unlimited imagination to
victimize his fellow men, or practice absolute evil in the name of State policies?
Despite all this, most contemporary international case law continues insisting in
implying that State crime does not exist. It closes its eyes to the acts of cruelty
proved before an international human rights tribunal such as the Inter-American
Court of Human Rights, and continues trying to persuade the unwary of the alleged
impossibility of State crime. In its attachment to a dogma (societas delinquere non
potest), it demonstrates its submission to the power of the State, its intellectual
servility that can only generate the repudiation of the human conscience, and reveals
the most complete insensitivity and indifference to human suffering.
III.
The insensitivity of the State to the consequences of its own
criminal practices
14.
In this regard, those of us who work in the domain of the international
protection of human rights continue the fight, based less on our knowledge of the
discipline at the service of safeguarding the oppressed, but rather on the feeling of
ineluctable indignation, and an inclination towards mysticism. After all, there appear
to be no limits to human cruelty, and it seems that the extremes of human evil
constantly exceed imagination itself. This vision is exhausting for anyone who is truly
concerned about the fate of his fellow men.
15.
In one of his last books, the erudite scholar, Isaiah Berlin, when observing
that the “primary duty of politics” was to avoid “the extremes of suffering,” noted the
distressing fact that no era had witnessed "so much remorseless and continued
slaughter of human beings by one another" as the twentieth century. 8 And, he added
that, tragedy as distinct from disaster consisted in “conflicts of human actions,
character or values,” and that the “tragic element” was always due to “inevitable
human errors.” 9
16.
Indeed, one of the unfortunate legacies of the twentieth century is to be
found in the testimonies and reports of those who have suffered atrocities, some of
them coldly calculated, planned and executed on a large scale by the State. These
State crimes or atrocities reveal “the submission of the individual conscience to the
7
.
Paragraphs 1-93.
8
.
I. Berlin, The Crooked Timber of Humanity, Princeton, University Press, 1997, pp. 17 and 175.
9
.
Ibid., p. 185.