17
(Judgment of 30.11.2001), the Court ordered reparations in terms of educational
benefits and payment of health service expenses; in the Durand and Ugarte versus
Peru case (Judgment of 03.12.2001), the Court once again ordered payment of health
services or expenses and psychological support. Said reparations for damages are in
fact both compensatory and punitive; “punitive damages,” thus understood, actually
have already been applied, for a long time, in the domain of international human rights
protection –which makes us recall the phrase by Molière’s famous character, Monsieur
Jourdain, qui parlait la prose sans le savoir...61 In evolving contemporary international
law, “punitive damages” lato sensu62 (beyond the merely pecuniary meaning
inappropriately given to them) can be an appropriate response or reaction of the
juridical order against a crime of State.63
53.
In conclusion, the facts in the instant case, Myrna Mack Chang versus
Guatemala, demonstrate that crimes of State do exist. The facts in the instant case
indicate that most contemporary international juridical doctrine is mistaken in seeking
to avoid the issue. While the expression “crime of State” may seem objectionable to
many international jurists (especially those petrified by the specter of State
sovereignty) because it suggests an inadequate analogy with juridical categories of
domestic criminal law, this does not mean that crimes of State do not exist. The facts
in the instant case are eloquent evidence that they do exist. Even if another name is
sought for them,64 the existence of crimes of State does not cease for that reason.
54.
Crimes of State are much more than a possibility; as the facts of the cas
d'espèce show, they are a reality. As long as attempts to evade the issue continue,
contemporary international juridical doctrine will continue to succumb to the specter of
State sovereignty, and it will continue to hold back the evolution of the law of nations
in our days. As long as its existence continues to be denied, the human person, the
ultimate one entitled to its inherent rights, and prior and superior to the State, will be
denied protection and exercise of said rights, first of all the right to justice; the human
person will also be denied reparations for abridgments of those rights.
55.
As long as its existence continues to be denied, the State –hostage to a
deformed structure of repression and impunity- will be deprived of its principal aim, the
realization of the common weal. As long as its existence continues to be denied, in the
midst of an empty semantic imbroglio (which distracts attention from the central issue,
which is the need to ensure that justice prevails), the Law itself will be deprived of its
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
61
.
M. Jourdain: - "(...) Il y a plus de quarante ans que je dis de la prose, sans que j'en susse rien, et je
vous suis le plus obligé du monde de m'avoir appris cela". Molière, Oeuvres Complètes (Le bourgeois
gentilhomme, 1670, act II, scene V), Paris, Éd. Seuil, 1962, p. 515.
62
.
It should not go unnoticed that, e.g., the Declaration adopted by the United Nations World
Conference against Racism, Racial Discrimination, Xenofobia and Related Forms of Intolerance (Durban,
2001), when it foresaw measures or reparation, compensation, indemnification and others for human
suffering and the “tragedies of the past” (paras. 98-106), and the respective Program of Action, in its
provisions on reparations and indemnification (paras. 165-166), used a language that reveals affinities with
the concept of “punitive damages” lato sensu.
63
.
N.H.B. Jorgensen, The Responsibility of States for International Crimes, Oxford, University Press,
2003, pp. 231 and 280.
64
.
Which would not avoid the skeptical exclamation of the legendary prince of Denmark:
"-(...) What do you read, my lord?
- Words, words, words".
(W. Shakespeare, Hamlet, Prince of Denmark, 1600, act II, scene 2).
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