Abstract
Abstract Many domestic courts, when prosecuting atrocities committed in their dictatorial or warring past, have been facing a real dilemma: whether to classify the facts as ordinary crimes, foreseen by the domestic legislation prior to the facts and therefore consistent with the principles of legality and non-retroactivity, or as international crimes, which do not grant the same compatibility but allow to overcome the obstacles to prosecution imposed by statutory limitations and amnesties. The paper focuses on an interpretative method developed by several Latin American tribunals to overcome this impasse, by means of a combined application of the two criminal categories. Although this ‘dual classification of facts’ apparently solves the dilemma, it is flawed from both a methodological and substantive perspective. After scrutinising these problematic issues, the paper analyses some alternative interpretative proposals that may also allow to avoid impunity, but without impinging on fundamental principles of modern criminal law systems.
Highlights
The present of International Criminal Law is played out in national courts
The consolidation of the duties of criminal prosecution and punishment imposed by International Law, on the one hand, and the principle of complementarity that governs the operation of the International Criminal Court, on the other, are giving States an increasing role in responding to serious violations of human rights that can be classified as international crimes.[1]
The factual context within which the method of dual classification is being developed essentially coincides with the atrocities committed during Latin American dictatorships and armed conflicts, a precursor can be identified in the well-known Finta ruling, handed down by the Canadian Supreme Court.[21]
Summary
The present (and probably the future) of International Criminal Law is played out in national courts. Called dual classification of the facts.[3] The method consists of classifying the facts that are the subject of the proceedings under two categories at the same time: on the one hand, as ordinary crimes, as defined by the criminal legislation of that country, and on the other, as international crimes This is a line of argument that was inaugurated by a Spanish court, but that is found mainly in the case law of several Latin American countries (Colombia, Chile, Peru and, above all, Argentina). Maculan from critical aspects, this proposal allows to overcome the statute of limitations obstacle, without forcing to a retroactive application of criminal law
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