I. The criminalization of grave human rights violations 3. The facts of the Case of Goiburú et al. are extremely serious and fall within the framework of “Operation Condor,” which characterized an era of the most brutal repression and evil in the entire history of Latin America in general and of the Southern Cone in particular. In this judgment (paras. 40 and 41), the Court recalls that, in its brief answering the application, when acquiescing to “the factual considerations” described therein regarding the merits of the case, the defendant State indicated that it:
“[…] acknowledged that, in the past, specifically during the regime of Alfredo Stroessner (1954-1989), grave human rights violations were perpetrated that must be investigated, punished and repaired adequately by the State. […] There is no doubt that [the] obligation to ensure rights was not complied with by the State during the 1954-1989 regime, because instead of organizing the Government so that it was capable of legally ensuring the free and full exercise of human rights, it was consolidated under a repressive system which systematically violated human rights.
Nevertheless, it is important to mention that Paraguay, contrary to other countries of the Southern Cone, never adopted amnesty laws and recognized the non-applicability of the prescription of grave human rights violations. The State affirms that these are examples of preventive measures designed to preclude the repetition of abuses such as those that occurred during the 1954-1989 dictatorship.”
4. The Court in turn, established as proven facts in this case that:
“The forced disappearances of Agustín Goiburú Giménez, Carlos José Mancuello Bareiro and the brothers Rodolfo and Benjamín Ramírez Villalba have similar characteristics and refer to a single context, in which agents of the Paraguayan State illegally detained, maintained incommunicado, tortured and disappeared persons whose political activities were opposed to the regime of General Stroessner or who were identified as his enemies” (para. 61(14)).
These violations were perpetrated systematically and at the inter-state level. Thus, as the Court confirmed, “Dr. Goiburú’s disappearance is an example of the coordinated actions taken by the Paraguayan and Argentine security forces under “Operation Condor.” His disappearance fits within the modus operandi used to disappear Paraguayans in Argentina during the military dictatorship in that country” (para. 61(28).
5. On December 22, 1992, numerous documents were revealed that are kept today in the so-called “Terror Files” in Asunción, which is “one of the most important and irrefutable sources of evidence of the grave abuses committed during the dictatorship of General Stroessner. The documents provide an overview of the Stroessner regime and contain abundant evidence of human rights violations, including arbitrary detention, torture, extrajudicial executions and disappearances, as well as the repressive international cooperation” (para. 61(121)). In reality, the facts of the instant case speak for themselves. When determining the State’s international responsibility in the context of this case, the Court stated in its judgment that:
“This case has unique historic importance: the facts occurred in the context of the systematic practice of arbitrary detention, torture, execution and disappearance perpetrated by the intelligence and security forces of the dictatorship of Alfredo Stroessner, under “Operation Condor,” whose characteristics and dynamics have been described in the proven facts […]. In other words, the grave acts took place in the context of the flagrant, massive and systematic repression to which the population was subjected on an inter-State scale, because State security agencies were let loose against the people at the transborder level in a coordinated manner by the dictatorial Governments concerned” (para. 62).1 6. Following the embodiment of the grave violations in the four 1949 Geneva Conventions on international humanitarian law (and the two 1977 Additional Protocols), the current historic process in international law of criminalizing such grave violations of human rights and international humanitarian law was gradually initiated – and has intensified in recent years. The facts concerning “Operation Condor” confirm how appropriate it was to establish a hierarchy of both laws and international illegal acts, in order to determine the legal consequences and avoid the repetition of grave human rights violations. Just as jus cogens prohibitions (cf. infra) have been established on the normative level and, above and beyond this, on the level of substantive law, the establishment of a ranking of violations of law (some being particularly serious, and constituting, in my opinion, true State crimes - infra) is being sought, in order to determine their legal consequences.
7. Indeed, recent advances in the criminalization of grave violations of human rights and international humanitarian law2 have accompanied pari passu the evolution of contemporary international law; the establishment of an international criminal jurisdiction is seen nowadays as an element that strengthens international law, overcoming basic shortcomings of the past in relation to the inability to prosecute and sanction perpetrators of crimes against humanity.3 These advances in our times are due to the intensification of the clamor of all humanity – to the universal juridical conscience as the ultimate material source of all law – against the atrocities that, in recent decades, have made victims of millions of human beings throughout the world – atrocities that cannot be tolerated and that must be combated with determination.
8. We must turn our attention to the superior universal values underlying the whole issue of the recent creation of an international criminal jurisdiction with a permanent seat. The materialization of the international criminal responsibility of the individual (alongside the responsibility of the State), and the current process of criminalization of grave violations of human rights and humanitarian law constitute elements of crucial importance to combat impunity and for the treatment that should be accorded to past violations, in order to safeguard human rights.