II. The context of State terrorism: ‘Operation Condor’ 9. Despite the gravity of the facts of the instant case, all the details of “Operation Condor” (in the framework of which the Case of Goiburú et al. is situated) have not been sufficiently clarified to date (cf. infra). Under this Operation, the security forces of the States of the Southern Cone coordinated, at the highest level of command, to detain illegally or arbitrarily, abduct, torture, murder or disappear thousands of persons. Although some details of this Operation remain vague even today, as one report on the matter indicates:
“[…] There is sufficient and irrefutable evidence that State terrorism was practiced on an international scale. The documentation found and the testimonies of several of the agents involved reveal the complicity of the Paraguayan Government and police with the brutal repression exercised by the dictatorships in Argentina and Chile, as well as those of Brazil and Bolivia. It also shows how General Augusto Pinochet protected the practice of State terrorism within and outside his country. There is evidence that both Pinochet and Stroessner paid special attention to strengthening and coordinating their security services and, on several occasions, they met for this purpose.”4 10. Indeed, the historic Final Reports of both the National Commission for Truth and Reconciliation (of Chile, 1991, the so-called Rettig Report) and the National Commission on the Disappearance of Persons (of Argentina, 1984) confirm the existence of the coordinated repression carried out by the secret services of the countries of the Southern Cone that became known as “Operation Condor.” The first Final Report, of the Commission for Truth and Reconciliation of Chile, documents the case of “33 Chilean citizens disappeared following their capture by Argentine, Paraguayan or Brazilian agents, and handed over to DINA, in just 1975 and 1976.”5 The Rettig Report refers expressly to “Operation Condor”:
“The origins of DINA’s foreign structure seem to date back to April or May of 1974. […] From mid-1974 onward, DINA increasingly developed a “foreign capability” which included having operational forces in various countries. […] In order to engage in the same kind of political repression in other countries, DINA took the first steps toward coordinating intelligence services in the Southern Cone, including, besides Chile, the security services or similar groups in Argentina, Uruguay, Paraguay and Brazil. The group that emerged, which was apparently coordinated by DINA, came to be called “Condor,” although some think that name referred not to the group or community itself but rather to a series of coordinated operations they undertook. DINA also maintained bilateral relations with various foreign intelligence services, including the CIA.”6 Likewise, the corrected and updated summary of the Rettig Report (2nd ed., 1999) refers expressly to the “operational plan called ‘Condor,’ which included the elimination of political opponents.”7 11. In its Report “Nunca Más” [Never Again] (the first edition of which is dated November 1984), the Argentine National Commission on the Disappearance of Persons states, in relation to the “repressive coordination” in Latin America:
“The illegal repressive operations undertaken by the Government and the activities of persecution linked to them were not confined by geographical boundaries. The security organizations of neighboring states collaborated with these activities in reciprocal arrangements whereby people were arrested with no regard for legality, in blatant violation of the international treaties and conventions on political asylum and refuge to which our country subscribes. The agents of foreign repressive regimes operated in our country and arrested Uruguayans, Paraguayans, Bolivians and other nationals. Foreigners were clandestinely abducted with impunity and handed over to the authorities of their respective countries. […]
The method used consisted basically of a linking-up of illegal, repressive groups, which acted together as a single force. […]
The events which occurred demonstrated the existence of a typically 'multi-national' repressive apparatus. Under its protection, the foreign forces of repression were integrated into the task groups and became involved in kidnapping, interrogation under torture, assassination.”8 12. How should we assess this immense distortion of the purposes of the State, when considering the acts carried out under “Operation Condor,” which are still not completely known in all their macabre details? In the conceptual universe of law, this distortion was consummated and accentuated, in my opinion, to the extent that those responsible for exercising power (and their doctrinaires) and for legislative activities, deviated from the iusnaturalist principles of the legal system. In this regard, M. García-Pelayo pondered correctly that:
“The rule of law signifies […] that the State’s power is limited by law, but not the possibility of legitimizing any criteria by giving it the form of law […]. Even though legality is a component of the concept of the rule of law, it is also true that this is not identified with just any type of legality, but with a legality that does not harm certain values for and on behalf of which the legal system was constituted […] and which are expressed in norms or principles that the law cannot violate. After all, the rule of law emerges from the essence of iusnaturalism […], precisely with a legality designed to safeguard certain values […], certain rights believed to be natural […]. It was only later that the comprehensive development of legal positivism separated from this underlying connection leading to a full and conscious identification of the law with laws, and of the rule of law with the lawful State […].”9 13. Hence the emergence of the authoritarian, repressive and fascist regimes. In the historical perspective of human thought, the Hegelian opposition to iusnaturalism10 made a significant contribution towards this degradation, with fateful consequences: the “glorification” of the State, transformed into an end in itself, the final depositary of human freedoms, “alpha and omega,” justifying the excesses of nationalism with an emphasis on “national security” and fascism (as denounced in Ernst Cassirer’s acute and penetrating analysis11 and in the reflections of Alf Ross12), in the context of which grave human rights violations and successive atrocities were committed.
14. But the rebirth of iusnaturalism – which, in reality, never ceased to exist – as of the middle of the twentieth century testified to the impossibility of disregarding the human conscience, the universal juridical conscience – ultimate material source of all law – which today rises up against the indifference and the impunity of those responsible (both States and individuals) for those atrocities and crimes against humanity that have made victims of thousands and thousands of persons in the countries of the Southern Cone of Latin America alone – to which can be added so many other crimes against humanity and acts of genocide perpetrated in recent decades on other continents (Europe, Africa and Asia).
15. This judgment of the Court acknowledges that the proven facts constitute a clear situation of State terrorism. The Court also acknowledged the frightening inversion of the purposes of the State that this has implied (constituting, once again, in my opinion, the somber contraposition of the State and the nation). In the words of the Court:
“[…] The institutions, mechanisms and powers of a State should function as a guarantee of protection against the criminal activities of its agents. However, it has been verified that the State’s power was orchestrated as a means and resource to violate rights that should have been respected and safeguarded, and actions were implemented using the inter-State collaboration described above. In other words, the State became the principal factor in the grave crimes committed, constituting a clear situation of ‘State terrorism.’
In Paraguay, this situation has been recognized by the convergence of decisions adopted by the three branches of the State; the Executive, by acknowledging the State’s international responsibility in this international jurisdiction and, previously, its Legislature and Judiciary” (paras. 66 and 67).
16. In this regard, in addition to the systematization of the “Terror Files” (following the revelation of these documents on December 22, 1992), the State promulgated Act No. 838/96, on September 12, 1996, to compensate the victims of the human rights violations that occurred during the period 1954-1989, and adopted Act No. 2225, on October 6, 2003, creating the Truth and Justice Commission (para. 61(121) to 61(123)). A judgment of the First Criminal Tribunal (de Liquidación y Sentencia) of April 17, 2000, recognized the “common practice” at the time in question of “conceal[ing] the disappearances of detainees who were executed, an action that among the prisoners was called the ‘ley de fuga’ [the escape law]” (para. 69). And, significantly, a ruling of the Third Criminal Tribunal (de Liquidación y Sentencia) of December 7, 2000, stated that:
“Terrorism organized by the State itself is a form of organized crime that has occurred in numerous countries and, in particular, in Latin America, where the police forces, diplomatic service, Government officials and military officials in Government have coordinated and carried out ‘cleansing tasks’ and ‘special death flights.’ This type of criminal organization has even crossed frontiers, with agents in border countries. […]” (para. 70).
17. In other words, in the instant case, the defendant State itself has acknowledged – in a commendable spirit of procedural cooperation – its international responsibility for the existence, at the time in question, of a criminal policy. And, it has done so, at different times, through statements made by all its powers. Its own Judiciary has expressly characterized State terrorism as a form of organized crime; in other words a State crime. The international jurists who continue to deny the existence of State crimes are closing their eyes to historically proven facts, disregarding the terrible suffering of the numerous victims of such crimes and providing a lamentable disservice to the evolution of contemporary international law.
18. State crimes do exist and are much more frequent that could be supposed prima facie. In the present Case of Goiburú et al., they were perpetrated on a transborder or inter-State scale. In a previous case heard by this Court, the Plan de Sánchez Massacre v. Guatemala (judgment on merits of April 29, 2004), I maintained in my separate opinion that:
“From this perspective, State crime is a grave violation of peremptory international law (jus cogens). State crime becomes even more evident to the extent that it is established by the State’s intention (act or omission) or tolerance, acquiescence, negligence or omission in relation to grave violations of human rights and international humanitarian law perpetrated by its agents, even in the name of a State policy” (para. 35).
And, in my separate opinion in Myrna Mack Chang v. Guatemala (judgment of November 25, 2003), I indicated that, as subjects of international law, both the State and the individual can be held responsible for the crimes they commit, coexisting the international responsibility of both, with the corresponding legal consequences (para. 26).
19. In the instant case, State crimes have been committed on an inter-State level. The States of the Southern Cone coordinated within the framework of their “counterinsurgency” policy to torture and exterminate certain segments of their populations. What a tragic and historic irony! The State inflicted indescribable suffering – that will take decades to heal – precisely on their most valuable component, their population! As the Court concluded in this regard:
“[D]uring the 1970s, in absolute contradiction of the principal objects and purposes of the organization of the international community established universally in the Charter of the United Nations, and the regional community in the Charter of the Organization of American States and the American Convention itself, the intelligence services of several countries of the Southern Cone of the Americas established a criminal inter-State organization with a complex assemblage, the scope of which is still being revealed today; in other words, there was a systematic practice of “State terrorism” at an inter-State level” (para. 72).