12
ultimate aim, which is precisely the realization of justice. As long as attempts to avoid
the issue continue, treatment of the central chapter of the law of international
responsibility of the State will continue to be unconvincing, in addition to being
conceptually incomplete and juridically inconsistent. With this, the construction and
consolidation of the true Rule of Law will regrettably be postponed, and in the
framework of the latter, that of the true right to the Law, that is, the right to a legal
order that effectively safeguards the fundamental rights of the human person” (paras.
54 and 55).
VII. Coexistence of the International Responsibility of the State and
the Individual
37.
I do not consider that there is any legal impediment to the concomitant
determination of the international responsibility of the State and the criminal
responsibility of the individual in the terms indicated above (para. 25, supra) in
relation to the American Convention, which reveals the interaction between the
national and international legal orders in this domain of the protection of human
rights. In this regard, it has been considered that, since the facts determined by the
Historical Clarification Committee (CEH) coincided with crimes classified in both
domestic and international laws, and since the respective conducts were classified as
“the most serious on the social scale,” meriting “the most severe social penalties,” a
mere “ethical reproach” was necessary but insufficient; consequently, for such
conduct, “the imposition of a penalty” was envisaged. And it was added that:
"If the reproach is only moral the whole system for the prevention of crime and the
protection of the legal rights established by criminal law is distorted. If a criminal penalty
is not applied in the case of such serious acts, society may consider that acts that were
prohibited were permitted or, at the very least, consider that they were justified."45
The struggle against impunity is based on the foregoing. However, at the strictly
international level the matter has still not been developed sufficiently, and this
reflects the persisting attitude of dealing with the international responsibility of the
State and the criminal responsibility of the individual separately and in a
compartmentalized manner.
38.
At the actual stage of insufficient development of the issue, the international
human rights tribunals (the European and Inter-American Courts and, in future, the
African Court) focus on the former (State international responsibility), while the ad
hoc international criminal tribunals (for the Former Yugoslavia and for Rwanda) and
the International Criminal Court (ICC) deal with the latter (the international criminal
responsibility of the individual). But the international responsibility of the State and
the individual are complementary. However, when focusing on the international
responsibility of the State for violations of the rights it protects, the American
Convention on Human Rights does not fail to indicate – in its often overlooked Article
32(1)46 – that “every person has responsibilities to his family, his community, and
mankind.”
45
C. Paz and Paz Bailey, La Tipificación de Violaciones en Contra de Derechos Fundamentales y los
Hechos de Violencia Vinculados al Enfrentamiento Armado, Guatemala, CECI/Instituto de Estudios
Comparados en Ciencias Penales de Guatemala, 1998, p. 2.
46
Regarding the correlation between obligations and rights.
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