14
grave violations of human rights and international humanitarian law (for acts of
genocide, crimes against humanity and war crimes), gave new impetus to the
international community’s struggle against impunity – as a violation per se of human
rights – in addition to reaffirming the principle of the international criminal
responsibility of the individual47 for such violations; thus seeking to avoid or prevent
future crimes.
48.
More than 50 years ago, the renowned Nuremberg Tribunal created a new
paradigm by stating that individuals can be punished for violating international law,
because crimes against international law are committed by individuals and “not by
abstract entitles,” and only by punishing these perpetrators can the provisions of
international law be implemented.48 This famous obiter dictum has effectively paved
the way towards the development of international criminal law, which has filled a gap
in classic international law, by seeking to end impunity.
49.
However, this obiter dictum has never satisfied me completely, because it
reflects only one aspect of the reality, by ignoring the State’s role in the perpetration
of these crimes. Hence, the parallel development of international criminal law and
international human rights law, whereas I consider that their convergence and
complementarity should be fostered. Even though States appear to be “abstract
entities” when providing basic services, such as free access to education and public
health care, to employment and housing (often failing to comply with their
obligations in these areas and alienating large segments of the population), they are
very concrete realities when they punish, sanction, exclude, imprison, torture and
murder “undesirables” – as revealed in this specific case as well as many others.
VI.
The concealment of State crimes in “Operation Condor”
50.
Reparatory justice gains importance in the face of one of the most shocking
aspects of “Operation Condor”: the concealment of the State crimes perpetrated in
the context of this Operation, from the planning to the execution of its criminal
policies. A study published in Asunción in 2002, indicates that:
“Rarely in the recent history of Latin America has the truth about massive plans
and actions of repression taken so long to come to light as in the case of Operation
Condor. Only recently, a quarter of a century later, is it possible to know a significant
part of the documented history of those acts. It is still far from being the complete and
final version. This has been because the criminal acts committed involved the repressive
forces of several countries and because the secret pact signed in the 1970s continued
afterwards, through networks of concealment and impunity. […]
Operation Condor, which only now is beginning to be reconstructed based on the
documentary evidence that has begun to emerge, is a paradigmatic example of the
effects of State terrorism. […] Even though its winding-up was meticulously planned,
Condor has ended up losing the fight against remembrance.”49
47
.
Cf., in this regard, e.g., D. Thiam, “Responsabilité internationale de l'individu en matière criminelle,”
in International Law on the Eve of the Twenty-First Century - Views from the International Law Commission /
Le droit international à l'aube du XXe siècle - Réflexions de codificateurs, N.Y., U.N., 1997, pp. 329-337.
48
.
Cf., e.g., inter alia, Ph. Sands (ed.), From Nuremberg to The Hague - The Future of International
Criminal Justice, Cambridge, University Press, 2003, pp. 32-33.
49
.
A. Boccia Paz, M.H. López, A.V. Pecci and M.G. Giménez, En los Sótanos de los Generales - Los
Documentos Ocultos del Operativo Cóndor, Asunción, Expobook/Servibook, 2002, pp. 295-296. The statistical
information is still not final, but it is calculated that more than 30,000 Latin Americans were assassinated
within the framework of “Operation Condor”; ibid., p. 83. and cf. also, for example, N.C. Mariano, op. cit. infra
n. (52) pp. 18-19.
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