13
47.
Even in the fifties (in 1959), Pieter N. Drost published his works The Crime
of State, in two volumes, the first one dedicated to what he called “humanicide”,
and the second to genocide. When referring to the first category, he remembered
the existence of universal standards of reason and justice, and defined humanicide
as a Crime of State, perpetrated by State agents abusing public power, in detriment
of individuals, and in violation of human rights (such as those enshrined in Articles
3-21 of the Universal Declaration of Human Rights), defying the Constitutional
State. 38
48.
In his judgment, both acts and omissions can constitute crimes of State,
compromising the State’s aggravated international responsibility – in reason of its
criminality – as a legal person, which must assume the juridical consequences of
said crimes. 39 P.N. Drost concluded that it should protect individuals from
“humanicide” as a crime of State, and, since the latter could even “destroy the
international legal system”, it should be punished and inhibited. 40
49.
At the end of the XX century, the International Criminal Tribunal ad hoc for
the former Yugoslavia, in its Judgments of the case of Tadic, of 05.07.1997 (Trial
Chamber) and of 07.15.1999 (Appeals Chamber), stated – in its first Judgment –
that "the obligations of individuals under International Humanitarian Law are
independent and apply without prejudice to any questions of the responsibility of
States under International Law" (para. 573); the Tribunal added – in its second
Judgment – that the acts of the individuals in question "are attributed to the State,
as far as State responsibility is concerned, and may also generate individual
criminal responsibility." (para. 144) The determination of an individual’s
international criminal responsibility does not, therefore, free the State of its
international responsibility.
50.
In my recent General Course on Public International Law given in the
Academy of International Law of La Haya (2005), I allowed myself to present my
position in the sense that the crime of State does exist, and it has juridical
consequences. Likewise, I related its sanction and prevention with the fundamental
or superior interests of the international community as a whole and of the
international juridical legal system. 41 I did it based on my experience in this Court,
reiterating the reflections I have developed in this sense in successive Opinions in
Judgments regarding certain cases decided upon by this Court in the previous
years. 42
51.
There have been occasions in which the crimes of State have been
committed beyond national boundaries, on a truly inter-state scale. In this sense, in
my recent Concurring Opinion in the case of Goiburú et al. versus Paraguay
(Judgment of 09.22.2006), I allowed myself to state that
.
P.N. Drost, The Crime of State - Book I: Humanicide, Leyden, Sijthoff, 1959, pp. 262-263, 347348, 218-219, and 318.
38
.
Ibid., pp. 283-284, 290, 294, and 296.
.
Ibid., pp. 36 and 325.
39
40
.
A.A. Cançado Trindade, "General Course on Public International Law - International Law for
Humankind: Towards a New Jus Gentium", 317 Recueil des Cours de l'Académie de Droit International
de la Haye (2005) cap. XV (in press).
41
.
42
Cf. supra, paragraph 39 of this Concurring Opinion.