On one side, this provision gives a clear legal basis for prosecuting military personnel for war crimes committed during a non-international armed conflict. Note, however, how the principle of military necessity is only attached to the acts committed during an “international war” and not a non-international armed conflict. Leaving that aside, however, one has to wonder whether a civilian court has the jurisdiction to apply this particular norm in the first place. In one recent case in which the Salvadoran Supreme Court had to resolve a conflict of jurisdiction between the ordinary criminal and military courts, it decided in favour of the ordinary courts because the crime in question was proscribed by the general Criminal Code. It effectively ruled that military courts cannot try military personnel for ordinary crimes, even if these crimes were committed in performance of military duties. So, one can only assume that, likewise, civilian courts cannot conduct trials for the crimes proscribed by the Code of Military Justice.
Therefore, despite sanctioning international crimes, these provisions do not seem to be adequate for the El Mozote prosecution. Left with little choice, the private prosecutors opted to rely on ordinary crimes.
The amici curiae, however, suggest that it would be better if the court introduced the international paytm database ualifications of the crimes as well. They point out that the international dimension of the crimes emphasizes their gravity. This is, in my opinion, a question of symbolism rather than of practical prudence. While it may sound heretical, I fail to see what difference it makes to the victims and society at large whether the perpetrators get maximum sentences for murder, aggravated rape and torture, or for murder, rape and torture as an international crime. What does make the difference is if the perpetrators are set free or if the process drags on indefinitely because of errors of law and a ping-pong game between the courts. This can easily happen if an overzealous prosecutor or a first instance judge introduce concepts not native to domestic system without regard to the attitudes of the higher levels of judiciary. As I will present shortly, there are hints of these attitudes from the highest judicial authority in the country. Theoreticians might be disappointed with the “ordinary crimes approach”, but the victims and their surviving families probably will not.
There is, however, another aspect of introducing international dimensions in domestic prosecutions which is of far greater practical consequence. The internationalization of crimes contributes to overcoming restrictions on criminal prosecution due to statutes of limitations which most national legal systems have in place. In addition, it expands the field of criminal responsibility in order to enable prosecution of those who were designers of policies of gross violations but were sufficiently detached from the commission of the crimes themselves. Domestic concepts of criminal responsibility are not always well equipped for this challenge. The amici briefs are far more concerned with these issues than with the symbolism of international charges.