68 2011 Quebec Journal of International Law (Special Edition) condemned the State for its aggravated international responsibility by referring to the concept of genocide, on the one hand, and on the other by holding that the massacres and other violations committed against the Maya achí people had “ gravely affected the members of the Maya achí people” and “ constitute[ d] an aggravated impact that entails international responsibility of the State, which this Court will take into account when it decides on reparations.” 36

With this case law, the Inter-American Court of Human Rights endorses, implicitly at least, the “ State crime” concept. 37 More precisely, the Court seems to wish to rehabilitate the “ international crime” theory of the former Article 19 of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Paragraph 2 of the Draft Articles sets out that “ An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by the community as a whole constitutes an international crime”. 38

The Article’s third paragraph provides a list of international crimes including aggression, slavery, genocide, the maintenance by force of colonial domination, apartheid, and a serious breach of an international obligation of essential importance for the preservation of the human environment. Finally, paragraph 4 describes those internationally wrongful acts that do not rise to the level of international crimes as international “ delicts”. This Article, though adopted in the first reading, was highly controversial and eventually abandoned. It was criticized for introducing criminal vocabulary, for being based on subjective criteria which did not allow a clear definition of the various notions, and for its lack of significant practical consequences. 39 However, the concept of the degree of illegality has not been entirely abandoned, as Chapter III of the second part of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts sets out the legal rules for “ grave violations of obligations following from imperative norms of general international law”. Thus, the concept of grave violations explicitly refers to imperative norms of general international law. 40 Article 40(2) specifies that “[ the] breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.” 41 This brief detour via general

36Plan de Sánchez Massacre Case, supra note 32 at para. 51. See also the comments made by A. A. Cançado Trindade in his Separate opinion annexed to the Plan de Sánchez Massacre Case.

37A. A. Cançado Trindade, Separate opinion annexed to the Myrna Mack Chang Case, supra note 32, at para. 41 : “ Aggravated responsibility is, precisely, that which is consistent with a crime of State. The renowned Article 19 of the State Responsibility Project (1976) of the ILC […], in its provision regarding ‘ international crimes’, precisely had in mind the determination of an aggravated degree of responsibility for certain violations of international law.”

38International Law Commission, G. A., 53th Sess., Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, 56th session, Supp. No. 10 (A/ 56/ 10), chp. IV. E. 1 (2010), online : < www. javier-leon-diaz. com/ humanitarianIssues/

39State_ Resp. pdf>. at 472 ; J. Crawford, International Law Commission’s Articles on State Responsibility : Introduction, Text and Commentaries (Cambridge : Cambridge University Press, 2002).

40P. Daillier, A. Pellet, Droit international public, (Paris, L. G. D. J., 2002) at 472.

41Draft Articles on the Responsibility of States for Internationally Wrongful Acts, supra note 38, art. 40(2).