6
Nothing would seem to hinder it from containing aspects of both, together constituting
international responsibility. The latter has its own specificity. A State may be
internationally responsible for a crime, attributable both to its agents, who committed
it, and to the State itself as a legal person under international law. To deny this would
be to obstruct the development of international law in the current domain of
international responsibility.
16.
Even those who argue that criminal responsibility applies only to the individuals
who commit the crimes and not to the collective persons (the States), because societas
delinquere non potest, nevertheless recognize the existence and evolution, today, of
forms of criminal responsibility of legal persons under domestic law in various
countries.20 Holding legal persons criminally responsible (e.g. for environmental
protection) derives from the very capacity to act and the need to protect higher social
and shared values. The State, a legal person (though an abstract one) and a subject of
international law, has rights and duties regulated by the latter; its conduct is directly
and effectively envisaged in the law of nations.21 The State, as well as its agents, must
therefore answer for the consequences of their acts or omissions.
17.
In its final written pleadings on the instant case, Myrna Mack Chang versus
Guatemala, on June 24, 2003, the Inter-American Commission on Human Rights
established a distinction between the responsibility of the State per se and the
individual criminal responsibility of the agents of the State –although they are
interlinked- when it argued that, in the context of the cas d'espèce,
“there is a possible conflict of interests between the need to protect official secret, on
the one hand, and the obligations of the State to protect individual persons from the
illegal acts committed by their public agents and to investigate, try, and punish those
responsible for said acts, on the other hand. [...] To solve this tension, it is necessary to
take into account the higher interests of justice and therefore the right to the truth.
[…P]ublic authorities cannot shield themselves behind the protective cloak of official
secret to avoid or obstruct the investigation of illegal acts ascribed to the members of
its own bodies. In cases of human rights violations [...] resorting to official secret with
respect to submission of the information required by the judiciary may be considered an
attempt to privilege the “clandestinity of the Executive branch” and to perpetuate
impunity “(p. 11).
18.
In a situation such as the one described above, determination of the
international criminal responsibility of the individual is not, therefore, sufficient,
because the State itself, in whose name its agents committed a crime, contributed –as
a legal person under international law, to the perpetration of said crime or to its
happening. In the instant case, Myrna Mack Chang versus Guatemala, there is a crime
of State due both to the execution (planned by the highest echelons of public
authority) of anthropologist Myrna Mack Chang, and to the subsequent cover-up of the
facts, obstruction of justice, and impunity of those responsible, thus generating an
aggravated responsibility.
20
.
Cf. J. Barboza, "International Criminal Law", 278 Recueil des Cours de l'Académie de Droit
International de La Haye (1999) pp. 82 and 96.
21
.
Cf., e.g., G. Arangio-Ruiz, Diritto Internazionale e Personalità Giuridica, Bologna, Coop. Libr. Univ.,
1972, pp. 9-19; J.A. Barberis, Los Sujetos del Derecho Internacional Actual, Madrid, Tecnos, 1984, pp. 2635.
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