REASONED OPINION OF JUDGE A.A. CANÇADO-TRINDADE*
1.
I vote in favor of adoption of the instant Judgment of the Inter-American Court
of Human Rights on the merits and reparations in the Myrna Mack Chang versus
Guatemala case, in which the Court ruled that the violation of Myrna Mack Chang’s
right to life occurred under aggravating circumstances (para. 139), because it resulted
from “a covert military intelligence operation carried out by the Presidential General
Staff and tolerated by various authorities and institutions” (para. 140), set within a
“pattern of selective extra-legal executions fostered and tolerated by the State itself”
(para. 151), and a "climate of impunity” (paras. 155 and 158). The Court also found
that said military intelligence operation by the Presidential General Staff “sought to
conceal the facts and sought impunity of those responsible, and to this end, with
tolerance by the State, it resorted to all types of means, including harassment,
threats and murders of those cooperating with the courts,” thus affecting the
independence of the Judiciary (para. 216).
2.
It is my understanding that this is a case of aggravated international
responsibility of the State, demonstrated by the aforementioned facts and abusive
resort to the so-called “official secret,” leading to an obstruction of justice.1 These
aggravating circumstances make the instant case a paradigmatic one, and because of
them the instant Judgment of the Court is destined to be truly historical. Given the
great significance of the juridical issues addressed in it, I feel the obligation to state my
personal reflections on the matter, as the basis for my position on the subject of the
decision of the Court, especially with respect to the following aspects: a) the difficult
paths of international responsibility of the States; b) criminalization of grave human
rights violations; c) complementarity between the international responsibility of the
States and the international criminal responsibility of individuals; d) types of culpability
and crimes of State; e) crimes of State in connection with the fundamental or higher
interests of the international community; f) the act of invoking international
responsibility of the State by the human being as a subject of international law; g) the
nature of the international responsibility of the State, and its relationship with the
realization of justice and the struggle against impunity; h) the juridical consequences
of crimes of State: aggravated international responsibility and the nature and scope of
the reparatio.
I.
The Difficult Paths of International Responsibility of the States.
3.
The domain of international responsibility of the State plays a pivotal role in the
conceptual universe of International Law. It is the backbone of the international legal
order. Actually, the legal system of responsibility is the critical center of any legal
system, where the nature and scope of the obligations and the determination of the
juridical consequences of their abridgment come together. It therefore constitutes, in
brief, the thermometer of operation of the legal system as a whole. Nevertheless, it is
truly paradoxical that despite its pivotal role in the international legal order and its
crucial importance for the legal system in its entirety, the issue of international
*
1
This translations is awaiting its final revision by the author.
.
Cf. paras. 174-181 of the instant Judgment. Cf. also, in this regard, CEH, Guatemala, Memoria del
Silencio - Informe de la Comisión para el Esclarecimiento Histórico, volume VI, Annex I, Guatemala, 1999,
pp. 242 and 244.
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