3
could not have been prepared and carried out without the collaboration,
acquiescence, and tolerance, expressed through several actions and
omissions, of the Armed Forces of the State, including high officials of the
latter” (para. 121).
9.
Then, analyzing the facts acknowledged by the respondent State in the cas d'espèce,
the Court stated that
"it clearly follows that both the behavior of its own agents and that of
the members of the paramilitary groups are attributable to the State insofar
as they in fact acted in a situation and in areas that were under the control of
the State. In point of fact, the incursion by the paramilitary in Mapiripán was
an act planned several months before July 1997, carried out with full
knowledge, logistic preparations and collaboration by the Armed Forces, who
enabled the paramilitary to leave Apartadó and Neclocí toward Mapiripán in
areas that were under its control, and left the civilian population defenseless
during the days of the massacre by the unjustified transfer of the troops to
other places” (para. 121).
10.
A State is found to be internationally responsible by means of a judicious mental
operation by the members of a competent international judicial body, after carefully
establishing the facts of the concrete case; it is not merely the mechanical application of
given formulations of precepts that, in any case, are suppletory in nature. 2 Regarding the
subject matter under examination, I wish to refer here to a reflection that guided the past
work of the United Nations International Law Commission (ILC) on attributing a conduct to
the State with the purpose of establishing its international responsibility.
11.
In his substantive fourth (1972) Report on “The Internationally Unlawful Act of the
State, a Source of International Responsibility”, the former rapporteur of the ILC on this
subject, Roberto Ago3, judiciously reflected that
"It would be useless to object, as writers have often done, that only
States are subjects of international law and that therefore only they can
violate the obligations imposed by that law. Apart from the fact that such an
objection would be begging the question, the cases referred to here are not
cases of so-called international responsibility of individuals, but cases of
international responsibility of the State. Since the action of the private
individual would be attributed to the State, the State, acting through the
individual, would breach an international obligation"4.
12.
And Roberto Ago, the author of Part I of the draft ILC Articles on “The Origin of the
.
No matter how pertinent it may be to consider, with the aim of attributing said responsibility, the
provisions set forth in Articles 8 and 9, and partly in Article 11, of the 2001 ILC Articles on the International
Responsibility of the States –even more so in face of the acknowledgment of international responsibility made by
the State regarding “the acts that took place in Mapiripán in July 1997.”
2
.
In addition to Roberto Ago (rapporteur on this topic for the ILC from 1963 to 1979) we should mention
other distinguished jurists who also acted as rapporteurs on this matter at the ILC, both the previous one, F.V.
García Amador (1955-1961), and subsequent ones (W. Riphagen, 1979-1986), G. Arangio-Ruiz (1987-1996) and
J. Crawford (1997-2001).
3
4
.
U.N., Yearbook of the International Law Commission (1972)-II, p. 96, para. 63.