9
32.
The lack of certainty of the acknowledgement that I referred to above would
lead to practical consequences that would tarnish the performance of the
international jurisdictions – and, in any case, that of those related to the protection
of human rights. Likewise, once the principles of legality and justiciability inherent in
the international jurisdiction were “touched,” it would undermine the access of
individuals to such jurisdictions and affect legal certainty, and it would also curb the
prompt functioning of these instances, which, nowadays, are one of the principle
bastions of the world order, and whose competent performance is of interest to the
States themselves. International justice would be compromised, suspended or
subordinated to specific domestic acts, which are predictable or unpredictable from
the international, and even the national, perspective.
If this were so, the
international courts would have to systematically disregard acknowledgements and
acquiescence made by the States, so as not to risk the effectiveness of their own
rulings.
V.
RESPONSIBILITY OF THE STATE AND OF ITS AGENTS
33.
In the instant case, as I have said, the State’s acknowledgement of the facts
refers to those facts included in the application submitted by the Inter-American
Commission; moreover, the acquiescence to the claims contained in this application,
which initiated the proceeding, covers all the facts, without any reservation. These
include the participation of several persons in the violation committed under different
juridical classifications described in criminal law: perpetrators, intellectual authors,
accomplices, accessories. The existence of a complex criminal participation, with the
corresponding different individual responsibilities may be inferred from the
characteristics of the facts perpetrated, as well as from the probative elements
gathered and assessed by the Court, and also from the broad acknowledgement
made by the State.
34.
It is not possible to concentrate “criminal responsibility” for homicide in the
State, as this would continue to leave individual responsibilities unidentified and
unpunished. The idea of a State crime, a dramatic and effective term from a public
and political perspective, involving the existence of “conspiracy networks” within the
formal power, may imply, in view of its very broad scope, that criminal participation
is attributed to all those who are part of the State – and, indeed, constitute the State
itself – a conclusion which is evidently excessive and entails the temptation to
subordinate effective and specific individual criminal responsibility to a hypothetical
and general State responsibility or, at least, to hide the former under cover of the
latter. The consequences of this are foreseeable; sometimes it is proposed in good
faith, but its results may be contrary to those desired.
35.
As is always said, there is a State obligation to investigate facts that violate
human rights, prosecute those who participate in them, deliver the corresponding
convictions and carry out the respective punishments. This is the “obligation to
provide criminal justice” which I referred to above and which leads to the system of
reparations established in Article 63(1) of the Convention, according to the
progressive interpretation of the Inter-American Court in a development which is one
of the best contributions to its case law for the protection of human rights. For this
criminal justice to be effective, it must be complete, not selective, and it must be
implemented within a reasonable lapse of time. Otherwise, there will be absolute or
relative impunity – and the latter is still impunity – which constitutes the best
“safeguard” for the violation of human rights.