9 33. The lack of proportionality in the use (completely unnecessary) of force constitutes an aggravating circumstance of the already existing State responsibility. I do not free myself from going further: in the present case of the Castro Castro Prison, the animus agressionis (the mens rea) – that characterizes the gross violations of human rights arises as of the moment when the decision is made and the armed attack on the inmates of the mentioned prison, perpetrated by many officers of the national policy, the Peruvian army, and by special forces units (v.g., DINOES, UDEX, SUAT, USE), who, as stated by the Court in the present Judgment, “even placed themselves as snipers on the roofs of the Criminal Center and fired gunshots against the inmates” (para. 216) is planned. 34. The so-called “Operative Transfer 1”, carried out with great brutality by these different State security forces, could not have been, in my point of view, perpetrated with that magnitude (even with war weapons) without being previously planned, decided on, and authorized by the highest State authorities. License to kill, - was an authentic State crime. We can, thus, in said circumstances, go back in the tempus commisi delicti, to take into consideration, as aggravating elements, the planning of the state to commit an international illicit act of special seriousness. 35. At the same time, the principle of proportionality is normally invoked within the framework of International Humanitarian Law; its invocation and observance contribute to the clarification of behavior in a situation of armed conflict, imposing restrictions on belligerent behavior in the middle of hostilities; 22 the principle of proportionality is relevant in this context. What happens though, is that in the present case of the Castro Castro Prison versus Peru, the victims were not a belligerent part in an armed conflict, but instead people already deprived of their freedom and in a state of defenselessness, and that they were not rebellious. The temperamenta belli 23 are not in question here; the fundamental principles that may be invoked here are, of a different order, that of the dignity of human beings, and that of the inalienability of the rights inherent to it. Said principles inform and conform the human rights enshrined in the American Convention, and violated in the cas d'espèce. 24 36. The armed attack on the Castro Castro Prison did not form part of an armed conflict: it was a real massacre. The flagrant illegality of the acts of brutality imputable to the State, that make up ab initio its international responsibility under the American Convention, assumes a truly central position in the judicial reasoning of an international human rights tribunal such as this Court; the principle of proportionality appears as an additional element, in a tangential position, before a previously established international responsibility of the case. In its substantial study on Customary International Humanitarian Law, diffused by the International Committee of the Red Cross, 25 the principle of proportionality marks presence as a prohibition to attack causing death and injuries in the civil population in an excessive manner with foreseeable military advantages. . C.P./J.P., "Article 57 - Precautions in Attack", in Commentary on the Additional Protocols of 08 June 1977 to the Geneva Conventions of 12 August 1949 (eds. Y. Sandoz, C. Swinarski, B. Zimmermann), Geneva, ICRC/Nijhoff, 1987, pp. 683-685. And cf. J. Pictet, Development and Principles of International Humanitarian Law, Dordrecht/Geneva, Nijhoff/Inst. H. Dunant, 1985, p. 76. 22 . Cf. C. Swinarski, A Norma e a Guerra, Porto Alegre/Brasil, S.A. Fabris Ed., 1991, p. 17. . Operative paragraphs 3-6 of the present Judgment. 23 24 . International Committee of the Red Cross, Customary International Humanitarian Law (eds. J.M. Henckaerts, L. Doswald-Beck et allii), vols. I-III, Cambridge, University Press, 2005. 25