11
09.22.2006), and of the Ituango Massacres versus Colombia (Judgment of
07.01.2006). 27
42.
In this last one, - my Concurring Opinion in the case of the Ituango
Massacres, - upon developing my reflections with regard to the planning and
execution of massacres as crimes of State, I allowed myself to deliberate:
"How is it possible to deny the existence of a State crime? The international
legal experts that have done it (in their majority) have simply closed their eyes to the
facts, and given signs of their lack of conscience by denying to extract the juridical
consequences of said facts. Their blind dogmatism has stopped the evolution and
humanization of International Law. Crimes of State – there is no way to deny it – have
been planned and perpetrated by its agents and collaborators, in a recurring manner,
and on different continents. The experts on international law have the duty to save the
concept of crime of State, even to sustain the credibility of their profession. (...)
Successive crimes of State – those already determined and proven, added to
those there is no news about – continue happening, before the obliging and indifferent
eyes of the greater part of the contemporary experts in international law. The crimes
of State have not stopped existing because they affirm that they do not exist and
cannot exist. All the contrary: State crimes do exist, and they should not exist, and the
experts in international law should make an effort to fight it and punish it as such. The
greater part of the contemporary international law doctrine has been neglectful, when
it avoids the subject. 28 They cannot keep on doing it, since, fortunately, to ensure its
non-repetition, the atrocities have been reconstructed in recent accounts, 29 and the
memory has been preserved by the ever growing publications of the survivors of
massacres as State crimes." (paras. 30 and 41).
43.
The aggravated international state responsibility corresponds to these
massacres as crimes of State, with their juridical consequences, - as I have
reiterated in my reflections developed in my Concurring Opinion (paras. 24-36) in
the case of the Plan de Sánchez Massacre, and in my Concurring Opinion (paras.
30-40) in the case of the Mapiripán Massacre. Previously, in my Concurring Opinion
in the case of Myrna Mack Chang I rescued a doctrinal current that, for decades,
has admitted the existence of crimes of State (paras. 22-26), and that seems to be
forgotten – deliberately or not – in our days. It is not my intention here to repeat
my reflections developed in my previous Concurring Opinions in this sense, but to
add some new considerations on this forgotten juridical form of thought.
44.
It is not mere coincidence that, in the middle of the second decade of the
twentieth century, in an inspired and visionary book published in Bucharest in
1925, titled "Criminalité collective des États et le Droit pénal de l'avenir", the
Romanian lawyer Vespasien V. Pella warned not only that the capacity of a State of
committing international crimes is unquestionable, but that the most dangerous
criminality and the one that is most difficult to fight, is the crime organized by the
.
I also referred to the aggravating circumstances of massacres presented before this Court in my
Concurring Opinion in the case of Baldeón García versus Peru (Judgment of 04.06.2006).
27
.
The best thing that the e.g. Commission on International Law (CIL) of the United Nations could
do, in my opinion, would be to reopen, in 2007-2008, its reconsideration in the framework of its Articles
on the State’s International Responsibility, abandon the strictly statistic and anachronistic Cosmo vision
that permeates them, take the concept of crime of State out of the box, rescue it, and include it once
again in its mentioned Articles, with their juridical consequences (punitive damages). With this, the
mentioned work of the CIL, in my opinion, would gain credibility and would offer the international
community, and in final instance, humanity as a whole, a service.
28
.
Cf. compilaciones Masacres - Trazos de la Historia Salvadoreña Narrados por las Víctimas, 1a.
ed., San Salvador, Ed. Centro para la Promoción de Derechos Humanos "M. Lagadec", 2006, pp. 17-390;
Los Escuadrones de la Muerte en El Salvador, 2a. ed., San Salvador, Edit. Jaraguá, 2004, pp. 11-300.
29