VIII. The expansion of the substantial content of jus cogens 62. Despite what I have described above with regard to “Operation Condor,” I would like to conclude this separate opinion on a positive note. In this case of Goiburú et al. v. Paraguay, the Court has reaffirmed its consistent case law in the sense that the crimes of torture and forced disappearance of persons are violations of jus cogens, entailing the obligation to investigate them and punish those responsible (paras. 84, 93 and 128), in order to end impunity. In the instant case, the States of the Southern Cone established a repressive plan to commit these violations systematically and conceal their acts, which are aggravating circumstances (aggravated international responsibility).
63. In these circumstances, ensuring that justice is done, so as to end impunity, is an important form of reparation. In this regard, in my separate opinion in Bulacio v. Argentina (Judgment of September 18, 2003), I stated that law reacts in the face of the extreme violence with which human beings treat each other, since this is unacceptable. I reflected that:
“It is here that the Law intervenes, to halt the cruelty with which human beings treat their fellow men or women […] to affirm its own prevalence over brute force, to attempt to organize human relations on the basis of recta ratio (natural law), to mitigate human suffering, and thus make life less unbearable, or perhaps bearable – understanding that life with suffering, and solidarity, is preferable to non-existence […]
This explains the importance of the realization of justice. The juridical order (both domestic and international) sets itself up to oppose violent acts that breach human rights, to ensure that justice prevails and, thus, to provide satisfaction to the direct and indirect victims. In his work on L'Ordinamento Giuridico, originally published in 1918, the Italian philosopher of the Law, Santi Romano, argued that punishment is not attached to specific juridical provisions, but rather is inherent to the juridical order as a whole, operating as an “effective safeguard” of all subjective rights protected by said order.66 […]
The Law, issuing from and moved by human awareness, provides reparatio (from the Latin reparare, “to dispose once again”); it also intervenes to avoid repetition of the wrong, in other words, to establish, as one of the non-pecuniary forms of reparation of damage resulting from violations of human rights, the guarantee of non-recidivism of the injurious acts. […]
Reparatio does not end what happened, the violation of human rights. The wrong was already committed;67reparatio avoids a worsening of its consequences (due to indifference of the social milieu, due to impunity, due to oblivion). From this perspective, reparatio takes on a dual meaning: it provides satisfaction (as a form of reparation) to the victims, or to their next of kin, whose rights have been abridged, while also reestablishing the legal order weakened by said violations –a legal order erected on the basis of full respect for the inherent rights of the human person.68 The legal order, thus reestablished, requires guarantees of non-recidivism of the injurious facts. Reparatio disposes once again, reestablishes order in the lives of the surviving victims, but cannot eliminate the pain that is inevitably incorporated into their daily existence. The loss is, from this angle, strictly irreparable. Even so, reparatio is an unavoidable duty of those responsible for rendering justice. In a stage of greater development of human awareness, and therefore of the Law itself, undoubtedly the realization of justice overcomes any and every obstacle, even those derived from the abusive exercise of rules or precepts of substantive law […]. Reparatio is a reaction, in the field of the Law, to human cruelty, expressed in various ways: violence in dealing with other human beings, impunity of those responsible with respect to the public authorities, indifference and oblivion in the social milieu.
This reaction of the legal order breached (the substratum of which is precisely respect for human rights) is ultimately moved by the spirit of human solidarity.[…] Reparation, thus understood - providing satisfaction to the victims (or their next of kin) and guarantees of non-recidivism of the injurious facts, in the framework of the realization of justice - is undeniably important. Rejection of indifference and oblivion, and guarantees of non-recidivism of the violations, are expressions of solidarity between the victims and the potential victims, in the violent world, empty of values, in which we live. It is, ultimately, an eloquent expression of the ties of solidarity that link the living to their deceased ones […]”69 (paras. 30, 33, 35 and 37-40).
64. In this judgment, after underscoring the “continuing or permanent nature” of the crime of forced disappearance of persons (para. 83) and the context of impunity that still prevails in violation of Articles 8(1) and 25 of the American Convention, the Court took a step forward with regard to the jus cogens prohibitions, in the direction that I have been advocating for some time. Indeed, in my separate opinion in Myrna Mack Chang v. Guatemala (judgment of November 25, 2003), I sustained that, faced with the existence of a State crime, the right to justice is essential; in other words, the right to a legal system that effectively safeguards fundamental human rights (paras. 9-55).
65. I believe that this is an essential requirement of jus cogens, particularly when it has been proved that the State itself has planned (at the most senior level), and massively and systematically perpetrated crimes, making victims of individuals subject to their jurisdiction (and even subject to the jurisdiction of other States, such as in “Operation Condor”). In my separate opinion in the recent case of the Pueblo Bello Massacre v. Colombia (judgment of January 31, 2006), I observed that:
“The indivisibility between Articles 25 and 8 of the American Convention […] leads me to characterize access to justice, understood as the full realizationof justice, as forming part of the sphere of jus cogens; in other words, that the inviolability of all the judicial rights established in Articles 25 and 8 considered together belongs to the sphere of jus cogens. There can be no doubt that the fundamental guarantees, common to international human rights law and international humanitarian law,70 have a universal vocation because they are applicable in any circumstance, constitute a peremptory right (belonging to jus cogens), and entail obligations erga omnes of protection” (para. 64).71 66. In the same separate opinion, I argued that, in the same way as the Inter-American Court had expanded the substantial content of jus cogens in its historical Advisory Opinion No. 18 on the Juridical Status and Rights of Undocumented Migrants (of September 17, 2003), to include the basic principle of equality and non-discrimination, the moment had come to take another qualitative leap forward in the development of its case law, by proceeding to the necessary and “continued expansion of the substantial content of jus cogens” by recognizing that this also encompasses the right of access to justice lato sensu; in other words, the right to full jurisdictional assistance, even to end impunity.
67. To my great satisfaction, after insisting on this fundamental issue within the Court for three years, during my period as a judge of the Court, it has finally given this new qualitative leap forward that I have been advocating, when it affirms in this judgment, based on the gravity of the facts of the cas d'espèce:
“[..] Access to justice is a peremptory norm of international law and, as such, gives rise to obligations erga omnes for the States to adopt all necessary measures not to let such violations remain unpunished, either by exercising their jurisdiction to apply their domestic law and international law to prosecute and, when applicable, punish those responsible, or by collaborating with other States that do so or attempt to do so” (para. 131).
68. By correctly affirming that the right for justice to be done is a peremptory norm of jus cogens, I consider that the Court has shown that there are reasons to continue hoping: because, in the end, sooner or later, even in the face of the most cruel State crimes, the law reacts – as testified by this judgment of the Inter-American Court. Nowadays, the universal juridical conscience has awoken to acknowledge human suffering judicially and to seek its reparation by the guarantee of the primacy of justice in human relations.
Antônio Augusto Cançado Trindade
1. The Court then observes that “during the 1970s, the fact that power in the region was held by a majority of dictatorial regimes, which shared the ‘doctrine of national security’ as their ideological basis allowed the repression of individuals considered to be ‘subversive elements’ to acquire a transborder nature through “Operation Condor” This was the code name give to the ‘alliance of security forces and intelligence services’ of the Southern Cone dictatorships” (para. 64).
2. Cf. G. Abi-Saab, “The Concept of 'International Crimes' and Its Place in Contemporary International Law”, in International Crimes of State - A Critical Analysis of the ILC's Draft Article 19 on State Responsibility (eds. J.H.H. Weiler, A. Cassese and M. Spinedi), Berlin, W. de Gruyter, 1989, pp. 141-150; B. Graefrath, “International Crimes - A Specific Regime of International Responsibility of States and Its Legal Consequences”, in ibid., pp. 161-169; P.-M. Dupuy, “Implications of the Institutionalization of International Crimes of States”, in ibid., pp. 170-185; M. Gounelle, “Quelques remarques sur la notion de ‘crime international’ et sur l'évolution de la responsabilité internationale de l'État”, in Mélanges offerts à P. Reuter - Le droit international: unité et diversité, Paris, Pédone, 1981, pp. 315-326; L.C. Green, “Crimes under the I.L.C. 1991 Draft Code”, 24 Israel Yearbook on Human Rights (1994) pp. 19-39.
3. As was to be expected, the travaux préparatoires of the Statute of the permanent International Criminal Court, adopted at the 1998 Rome Conference, in parallel to State responsibility, contributed to the prompt acknowledgement of individual international criminal responsibility within the sphere of the present and future application of the Statute – which represents a major doctrinal advance in the fight against impunity for the most serious international crimes.
4. E. Cuya, op. cit. infra n. 126, p. 6.
5. Ibid., p. 5.
6. Cit. in Informe Rettig, tome II, Santiago, Chile, Comisión Nacional de Verdad y Reconciliación, February 1991, pp. 455-457 (emphasis added).
7. Cit. in: Nunca Más en Chile - Síntesis Corregida y Actualizada del Informe Rettig, 2nd. ed., Santiago, Chile, Comisión Chilena de Derechos Humanos/Fundación Ideas, 1999, p. 63.
8. Cit. in: Nunca Más – Informe de la Comision Nacional sobre la Desaparición de Personas, 20a. ed., Buenos Aires, EUDEBA, 1995, pp. 265-266.
9. M. García-Pelayo, Las Transformaciones del Estado Contemporáneo, 2nd ed. (10th reprint), Madrid, Alianza Edit., 1996, pp. 52-53.
10. G. Radbruch, Filosofía del Derecho, 4a. ed. rev., vol. I, Coimbra, A. Amado Ed., 1961, p. 77.
11. E. Cassirer, El Mito del Estado, 2a. ed., México/Bogotá, Fondo de Cultura Económica, 1996, pp. 311-319.
12. A. Ross, Sobre el Derecho y la Justicia, 2a. ed., Buenos Aires, EUDEBA, 1997, pp. 314-315.
13. Called by some the “school of assassins,” where it is estimated that more than 60,000 Latin American officers were “trained” (over the period 1946-1984) in torture techniques, particularly to extract confessions from political prisoners; M. Almada, “Terrorismo Made in USA en las Américas - Las Estrategias Legales contra la Impunidad en Paraguay” (presentation in Bochum/Germany on October 14, 2005), in www.terrorfileonline.org/es, p. 6. and cf. A. Boccia Paz, M.H. López, A.V. Pecci and M.G. Giménez, op. cit. infra no. (49), pp. 78-79; J. Patrice McSherry, op. cit. infra no. (51), pp. 16-17.
14. Cf., e.g., E. Cuya, “La ‘Operación Cóndor': El Terrorismo de Estado de Alcance Transnacional”, 7 Revista Ko'aga Roñe'eta (1996) pp. 1-9; K.M. Slack, “Operation Condor and Human Rights: A Report from Paraguay's Archive of Terror”, 18 Human Rights Quarterly (1996) pp. 492-506.
15. Not by consensus, but by the decision of a majority of the judges.
16. J. Dinges, Operación Cóndor - Una Década de Terrorismo Internacional en el Cono Sur, Santiago, Ed. B Chile, 2004, pp. 39-40; J. Dinges, Os Anos do Condor - Uma Década de Terrorismo Internacional no Cone Sul, São Paulo, Cia. das Letras, 2004, pp. 40-41; J. Dinges, The Condor Years - How Pinochet and His Allies Brought Terrorism to Three Continents, N.Y./London, The New Press, 2004, pp. 17-18.
17. CIPAE, Testimonio contra el Olvido - Reseña de la Infamia y el Terror (Paraguay 1954-1989), Asunción, Ed. CIPAE, 1999, p. 10.
18. Ibid., pp. 12 and 25.
19. Ibid., p. 34.
20. Ibid., p. 32.
21. Ibid., p. 26.
22. Ibid., p. 32.
23. Ibid., pp. 85 and 340.
24. Ibid., p. 392.
25. Ibid., pp. 120 and 462.
26. Ibid., pp. 120 and 462.
27. Cf. A.A. Cançado Trindade, “Complementarity between State Responsibility and Individual Responsibility for Grave Violations of Human Rights: The Crime of State Revisited,” in International Responsibility Today - Essays in Memory of O. Schachter (ed. M. Ragazzi), Leiden, M. Nijhoff, 2005, pp. 253-269.
28. Cf.,inter alia, A.A. Cançado Trindade, “International Law for Humankind: Towards a New Jus Gentium - General Course on Public International Law”, Recueil des Cours de l'Académie de Droit International de la Haye (2005) caps. IX-X (to be published); A.A. Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI, 1st ed., Santiago, Editorial Jurídica de Chile, 2001, pp. 317-374 (2nd ed., 2006); A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 9-104; A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, tome III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 447-497.
29. ICC, Selected Basic Documents Related to the International Criminal Court, The Hague, ICC Secretariat, 2005, pp. 47, 52, 122 and 151-153.
30. Ibid., pp. 32 and 122-124.
31. Ibid., pp. 53 and 155-156.
32. The decision was adopted by consensus; cf. ICC, 4th Assembly of the States Parties of the International Criminal Court (The Hague, 28.11-03.12.2005), p. 2. For the text on the Trust Fund for Victims, cf. ICC, Trust Fund for Victims, resolution ICC-ASP/4/Res.3, pp. 320-333.
33. ICC, Selected Basic Documents Related to the International Criminal Court, The Hague, ICC Secretariat, 2005, pp. 52 and 155.
34. Cf. International Criminal Court (ICC)/Pre-Trial Chamber I, doc. ICC-01/04, of January 17, 2006, pp. 14-15, 29 and 34; ICC-01/04, of March 31, 2006, p. 12; and ICC-01/04, of July 31, 2006, pp. 8-9.
35. E.g., in cases such as: Blake v. Guatemala, 1998; theStreet Children v. Guatemala, 1999; El Amparo v. Venezuela, 1996; Neira Alegría v. Peru, 1996; Paniagua Morales v. Guatemala, 2001; Baena Ricardo et al. v. Panama, 2001.
36. H.-H. Jescheck, “The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute,” 2 Journal of International Criminal Justice (2004) p. 43.
37. Cf., e.g., A. Cassese, “Y a-t-il un conflit insurmontable entre souveraineté des États et justice pénale internationale?” in Crimes internationaux et juridictions internationales (eds. A. Cassese and M. Delmas-Marty), Paris, PUF, 2002, pp. 15-29; and cf., generally [various authors], La Criminalización de la Barbarie: La Corte Penal Internacional (ed. J.A. Carrillo Salcedo), Madrid, Consejo General del Poder Judicial, 2000, pp. 17-504.
38. Cf. also, for example, my separate opinions in the cases of the Mapiripán Massacres (2005) and the Ituango Massacres (2006), both in relation to Colombia.
39. A.A. Cançado Trindade, “Complementarity between State Responsibility and Individual Responsibility...”, op. cit. supra n. (27), pp. 253-269.
40. Cf., in this sense, e.g., M.Ch. Bassiouni, Crimes against Humanity in International Criminal Law, 2nd. rev. ed., The Hague, Kluwer, 1999, pp. 252, 254-257. This is the understanding that underlies the United Nations Convention against Torture, which criminalizes the conduct of State agents under international law; ibid., p. 263, and cf. p. 277.
41. M.Ch. Bassiouni, op. cit. supra n. (40), pp. 227 and 289.
42. Y. Jurovics, Réflexions sur la spécificité du crime contre l'humanité, Paris, LGDJ, 2002, pp. 21-23, 40, 52-53 and 66-67. And cf. E. Staub, The Roots of Evil – The Origins of Genocide and Other Group Violence, Cambridge, University Press, 2005 [reprint], pp. 119, 121 and 264.
43. Regarding contemporary international case law on crimes against humanity, cf. J.R.W.D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd ed., Ardsley/N.Y., Transnational Publs., 2000, pp. 103-120 and 490-494; L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law, Leiden, Nijhoff, 2005, pp. 151-198.
44. Ibid., pp. 93, 183, 192, 199, 228, 278-279, 310, 329-331, 335, 360 and 375.
45. Cf.ibid., pp. 375-377, 403, 405-407, 441 and 447-448.
46. M.Ch. Bassiouni, Crimes against Humanity..., op. cit. supra n. (40), pp. 106 and 118.
47. Cf., in this regard, e.g., D. Thiam, “Responsabilité internationale de l'individu en matière criminelle,” in International Law on the Eve of the Twenty-First Century - Views from the International Law Commission / Le droit international à l'aube du XXe siècle - Réflexions de codificateurs, N.Y., U.N., 1997, pp. 329-337.
48. Cf., e.g., inter alia, Ph. Sands (ed.), From Nuremberg to The Hague - The Future of International Criminal Justice, Cambridge, University Press, 2003, pp. 32-33.
49. A. Boccia Paz, M.H. López, A.V. Pecci and M.G. Giménez, En los Sótanos de los Generales - Los Documentos Ocultos del Operativo Cóndor, Asunción, Expobook/Servibook, 2002, pp. 295-296. The statistical information is still not final, but it is calculated that more than 30,000 Latin Americans were assassinated within the framework of “Operation Condor”; ibid., p. 83. and cf. also, for example, N.C. Mariano, op. cit. infra n. (52) pp. 18-19.
50. Also, the involvement of the United States “intelligence service” in this Operation has today been proved, with the declassification of some (although not all) of the United States’ documents on Condor in June 1999; Condor as a component of a broader United States “counterinsurgency” strategy to prevent social movements in favor of political, economic and social change in the region; J. Patrice McSherry, Predatory States..., op. cit. infra n. (51), pp. XVIII-XIX, 241, 249-250 and 252-253; and cf. J. Dinges, Operación Cóndor..., op. cit. supra n. (16), p. 22. The FBI was well aware of everything that was happening in the mid-1970s in the countries of the Southern Cone, as indicated in paragraph 61(8) of this judgment of the Inter-American Court.
51. J. Patrice McSherry, Predatory States - “Operation Condor” and Covert War in Latin America, Lanham, Rowman & Littlefield Publs., 2005, pp. 4-5, 7-11, 21-23 and 242-243.
52. N.C. Mariano, Operación Cóndor - Terrorismo de Estado en el Cono Sur, Buenos Aires, Ed. Lohlé Lumen, 1998, pp. 73, 87, 62 and 95.
53. N.C. Mariano, op. cit. supra n. (52), p. 45.
54. Ibid., pp. 30-31.
55. A. Boccia Paz, M.H. López, A.V. Pecci and M.G. Giménez, op. cit. supra n. (56), p. 205; and cf. J. Dinges, Operación Cóndor..., op. cit. infra n. (16), p. 305.
56. A. Boccia Paz, M.A. González and R. Palau Aguilar, Es Mi Informe - Los Archivos Secretos de la Policía de Stroessner, 4a. ed., Asunción, CDE, 1994, p. 30.
57. Cf. D. Marty (rapporteur), “Alleged Secret Detentions in Council of Europe Member States”, Strasbourg, Council of Europe Parliamentary Assembly/Committee on Legal Affairs and Human Rights, doc. AS/Jur(2006)03.rev., of January 22, 2006, pp. 1-25; D. Marty (rapporteur), “Alleged Secret Detentions and Unlawful Inter-State Transfers Involving Council of Europe Member States”, Strasbourg, Council of Europe Parliamentary Assembly/Committee on Legal Affairs and Human Rights, doc. AS/Jur(2006)16-II, of June 7, 2006, pp. 1-71 (limited circulation).
58. Cf. J. Patrice McSherry, Predatory States..., op. cit. supra n. (51), pp. XXI, 247-249 and 254; and cf. J. Dinges, Operación Cóndor..., op. cit. supra n. (16), p. 22.
59. European Parliament, doc. A6-0213/2006, pp. 1-6.
60. Preamble, considerandum C.
61. In addition to this Resolution of the European Parliament, the Secretary General of the Council of Europe presented recommendations – in light of article 52 of the European Convention on Human Rights – in his recent Reports to the Government of the European States, on news that suggested that “individuals, notably persons suspected of involvement in acts of terrorism, may have been arrested and detained, or transported while deprived of their liberty, by or at the instigation of foreign agencies, with the active or passive co-operation of States Parties to the Convention or by States Parties themselves at their own initiative, without such deprivation of liberty having been acknowledged”; cf. Council of Europe, doc. SG/Inf(2006)5, of February 28, 2006, pp. 1-15; Council of Europe, doc. SG/Inf(2006)13, of June 14, 2006, pp. 1-8.
62. Cf., in this regard A.A. Cançado Trindade, A Humanização do Direito Internacional, Belo Horizonte/Brazil, Edit. Del Rey, 2006, pp. 3-106 and 385-409.
63. R.P. Sertillanges, Le problème du mal - l'histoire, Paris, Aubier, 1948, p. 5.
64. Cf., very recently, e.g.: United Nations/Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention - United States of America: Conclusions and Recommendations of the Committee against Torture, document CAT/C/USA/CO/2, of 18 May 2006, pp. 1-11; Council of Europe/Parliamentary Assembly - Committee on Legal Affairs and Human Rights, Alleged Secret Detentions in Council of Europe Member States - Memorandum (rapporteur D. Marty), document AS/JUR/2006/03.rev, of January 22, 2006, pp. 1-25; Council of Europe/Parliamentary Assembly - Committee on Legal Affairs and Human Rights, Alleged Secret Detentions and Unlawful Inter-State Transfers Involving Council of Europe Member States - Report (rapporteur D. Marty), document AS/JUR/2006/16/Part II, of June 7, 2006, pp. 1-71.
65. A term inadequately used with ominous consequences.
66. Santi Romano, L'ordre juridique (trad. 2nd ed., reed.), Paris, Dalloz, 2002, p. 16.
67. Human capacity both to promote good and for evil has not ceased to attract the attention of human reflection over the centuries; cf. F. Alberoni, Las Razones del Bien y del Mal, Mexico, Gedisa Edit., 1988, pp. 9-196; A.-D. Sertillanges, Le problème du mal, Paris, Aubier, 1949, pp. 5-412.
68. As I had pointed out in my Separate Concurring Opinion the previous day, with regard to Advisory Opinion No. 18 of the Inter-American Court on the Juridical Status and Rights of Undocumented Migrants (on September 17, 2003, para. 89.
69. Regarding these ties of solidarity, see my Separate Opinions in the Bámaca Velásquez v. Guatemala case (Judgments of the Inter-American Court on merits of November 25, 20002, and on reparations of February 22, 2002).
70. E.g. Article 75 of Protocol I (1977) to the 1949 Geneva Conventions on international humanitarian law.
71. And cf. paras. 60-62 of the same separate opinion.