10
37.
Therefore, the present case does not deal with determining the lack of
proportionality of the attack and the weapons (of war) used, since these (one and
the other) were already conclusively forbidden. There was no armed conflict, there
was no riot in the prison, there was no rebellion among the inmates; they were in a
complete state of defenselessness. The attack brutally perpetrated, with heavy war
artillery, was a cold-blooded massacre, which sought to exterminate people
deprived of their liberty and in a complete state of defenselessness.
38.
The international aggravated illicit had already been perpetrated and
immediately constituted the State’s aggravated international responsibility. Within
the context of the present case of the Prison of Castro Castro, the representation of
the victims and their next of kin, through their common intervener (Mrs. Mónica
Feria Tinta), also a victim of this specific case, captured, besides the facts (cf.
supra), the legal grounds applicable, with greater precision and success than the
Commission, with regard to this specific matter.
39.
This may not go unnoticed and it constituted for me a encouraging fact,
since, - as I have been insisting for years in the bosom of this Court and in my
books, 26 - the true plaintiff before the Court are the petitioners (and not the
Commission), who, as indicated in the present case, have reached a level of
maturity considered sufficient to present their arguments and evidence in an
autonomous manner, not only in factual matters, but also in juridical subjects (cf.
supra), and in some cases – as is the present case – with greater precision and
success than the Commission Therefore, the paternalistic and anachronistic vision
that in the past stated that the petitioners always needed a body such as the
Commission to “represent them” has been completely overcome. Not always. The
present case proves it beyond doubt.
VI.
The Recurrence of the State’s Crime: the Forgotten
Juridical Thought.
40.
The bombing of the Castro Castro Prison was a premeditated massacre,
planned and executed by State agents, from the highest hierarchy of the State’s
power up to the members of the police force. It was, as was previously stated, a
crime of State. Once more this Court decided, through the present Judgment, on a
crime of State, whose occurrence is much more frequent than what one can
imagine. The crimes of State that have reached international justice are a microcosmos of everyday atrocities in different continents, which have not yet been able
to be brought before the contemporary international courts.
41.
The existence and frequent occurrence of crimes of State are, in my opinion,
unquestionable. That is what I have been warning about, in the bosom of this
Court, - and before the apparent mental lethargy of an ample and insensitive
current of contemporary legal international doctrine, - in, v.g., my successive
Concurring Opinions in the cases of Myrna Mack versus Guatemala (Judgment of
11.25.2003), Plan de Sánchez Massacre versus Guatemala (Judgments of
04.29.2004 and 11.19.2004), of the Mapiripán Massacre versus Colombia
(Judgment of 03.07.2004), of the massacre of the Moiwana Community versus
Suriname (Judgment of 06.15.2005), of Almonacid Arellano et al. versus Chile
(Judgment of 09.26.2006), of Goiburú et al. versus Paraguay (Judgment of
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto
Alegre/Brasil, S.A. Fabris Ed., pp. 27-117 y 447-497; A.A. Cançado Trindade, El Derecho Internacional
de los Derechos Humanos en el Siglo XXI, Santiago, Editorial Jurídica de Chile, 2001, pp. 317-374; A.A.
Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos
Humanos, Bilbao, Universidad de Deusto, 2001, pp. 9-104.
26