10
28.
Crimes of State take shape, in brief, as especially grave violations of
international law entailing an aggravated responsibility (with aggravating
circumstances, thus evoking a category of criminal law); the gravity of the violation
directly affects the fundamental values of the international community as a whole.37
Critics of the concept of crimes of State, instead of bearing said values in mind, linked
that concept to a mistaken analogy with criminal law in the sense that it has under
domestic law.
29.
As Georges Abi-Saab rightly recalls, this is not what Roberto Ago had in mind
when, in 1976, he proposed the concept of international crimes or crimes of State in
the renowned Article 19 of the Draft Articles on State Responsibility of the ILC. The
distorted analogy with domestic criminal law ignores the specificity of crimes of State
in international law, and regrettably minimizes recognition of the fundamental or
higher interests of the international community, emergence of jus cogens in the
domain of international responsibility of the States, and the need to established an
aggravated regime of the international responsibility of the State.38 In addition, the
main purpose of this regime is precisely,
“to defend the normative integrity of the legal system itself against patterns of behaviour
which go against its most fundamental principles and thus undermine its regular
functioning and credibility. (...)
It can legitimately be feared that setting aside the dual regime of responsibility would be
widely perceived as a reversal of the evolution of general international law from a
community-oriented system back to a purely intersubjective one.”39
30.
Reaction to grave and systematic violations of human rights and of
International Humanitarian Law became, in our days, a legitimate concern of the
international community as a whole.40 This is called for with even greater strength
when the victims are vulnerable and defenseless, and when the structure of public
authority is deformed and it is utilized to abridge the inherent rights of the human
person.
Now when the international community professes certain fundamental and
higher values, it is necessary to accept the consequence of establishment of a special
regime of aggravated responsibility (associated with crimes of State) insofar as there
are abridgments of said values or of the rules that protect them.41
37
.
A. Pellet, "Can a State Commit a Crime? Definitely, Yes!", 10 European Journal of International Law
(1999) pp. 426-427; C. Tomuschat, "International Crimes by States: An Endangered Species?", in
International Law: Theory and Practice - Essays in Honour of Eric Suy (ed. K. Wellens), The Hague, M.
Nijhoff, 1998, pp. 253 and 265.
38
.
Establishment of said regime is precisely the aim of the aforementioned Article 19 of the ILC’s Draft
Articles on State Responsibility; G. Abi-Saab, "The Uses of Article 19", 10 European Journal of International
Law (1999) pp. 339-351.
39
.
Ibid., pp. 350-351.
40
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, volume I, 2d. ed.,
Porto Alegre/Brasil, S.A. Fabris Ed., 2003, p. 244; A.A. Cançado Trindade, Tratado de Direito Internacional
dos Direitos Humanos, volume III, 1st. ed., Porto Alegre/Brasil, S.A. Fabris Ed., 2003, p. 415.
41
.
G. Abi-Saab, "The Concept of ‘International Crimes’ and Its Place in Contemporary International
Law", in International Crimes of State (eds. J.H.H. Weiler, A. Cassese and M. Spinedi), Berlin, W. de Gruyter,
1989, pp. 144-145.
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