5
violations, particularly those that affect fundamental juridical rights – life, integrity,
liberty – most intensely are included as crimes or offenses in both national and
international laws and, in addition to the said State responsibility, give rise to the
specific criminal responsibility of the individual.
23.
Consequently, I prefer to speak of “crime originating from (desde) the State”
or “terrorism originating from (desde) the State”; in other words, crimes and
terrorism that use the power, the means and instruments possessed by those that
hold them, to break the law. In the same way, we can examine the expression “State
policy,” which supposes a consensus, a social and political participation, a
generalized or perhaps unanimous acceptance generated by democratic agreements,
goals and purposes, and this is not and never has been a characteristic of criminal
conspiracies and pacts among power groups, disguised as reasons of State,
considerations of the common good, motives of unity and public peace, that would
only have a moral meaning in a democratic society.
24.
Consequently, when international attribution is invoked in relation to human
rights issues (which is different from international criminal justice), reference is
made to the State’s responsibility and when personal attribution is referred to,
criminal or penal responsibility is examined. Even though international responsibility
– and some aspects of national responsibility – concern the State, criminal
responsibility corresponds to the individual authors or participants in the crime,
under the concept of “criminals,” offenders” or “wrongdoers,” when this is decided in
the respective judgment. In summary, it is the individual who commits the crime or
offence; and, under certain circumstances, the State responds for him, without
prejudice to the direct responsibility of the criminal participant in an offense.
25.
Those who attempt to subvert the burden of denunciation and reproach
deposited in the expressions “State crime,” “State terrorism” and “State policy,”
which consist in the violation of the rights of the people, try to assign the crime, the
terror or the execution of this policy to the account of the State and not of the
individual perpetrators, even when, as I have said – and I emphasize this to avoid
erroneous interpretations – the force of this expression, used in many cases, helps
reveal the use of the State’s resources and mechanisms by officials and their
subordinates to carry out their criminal activities.
26.
This collusion, expressed in unlawful decisions and acts, has resulted in some
of the gravest criminal acts every known. Essentially, it implies the official’s radical
betrayal of the State’s purpose and the moral and legal commitments that he should
honor and that, to the contrary, he ignores and dishonors. The definition of criminal
conducts as “State crimes” has a credible purpose. However, this does not annul the
need and convenience of rigorously defining the scope of each expression in function
of the attributed responsibilities and the applicable sanctions, precisely to close the
door to the constant temptation towards evasion or impunity.
27.
It is troubling that those who should respond for extremely serious personal
crimes may shield themselves behind the notion of State crime, terrorism or policy
precisely to elude their individual responsibility and may attempt to justify or excuse
themselves with the argument that they were only obeying criminal strategies that
overcame and conditioned their own free will. Arguments exist based on “hierarchic
obedience” and it could even be suggested, in a new application of the concept, that
“everyone is guilty, except the criminal.”
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