La obligación internacional del estado de perseguir penalmente los crímenes internacionales cometidos en su territoriofundamentos y obstáculos

Resumo

The demand for justice is not a theoretical demand for universal justice; it is a concrete demand, addressed to the courts of the state that has formerly covered the commission of the crimes, in the territory where these have been committed and where the dead are buried. That is why this thesis, having defined the crimes according to their gravity as international crimes, focuses on the analysis of the obligation of the state where the crimes were committed to prosecute them. However, in the present times, domestic rules are not yet applicable as such to those crimes. There is a need to resort to the rules of international criminal law. Moreover, these are the rules that serve as foundations to the obligation to which the title refers. The binding character of this obligation is analysed in the light of the definition of binding rule of general international law (jus cogens) set forth by Article 53 of the Vienna Convention of the Law of Treaties, as are the issues raised by its interpretation. Two kinds of obstacles that can be encountered within domestic law to the effective implementation of the relevant obligation are examined: statutory limitations, and amnesties. A restrictive application of the principle of legality can also pose a very serious obstacle. Consequently, if international crimes are to be prosecuted, it is necessary to complement domestic law and international law. In the face of the lack of provisions on punishment in international rules, a possible transitional solution is considered, specifically, having recourse to domestic descriptions of crimes, in the framework of international descriptions, resulting in a ¿combined legality¿ where international legality and domestic legality are reconciled.