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I. Introduction
On Friday, February 26, 2016, The High Risk Court (A) in Guatemala found two former senior military officers guilty of crimes against humanity in a case involving, rape, sexual violence, sexual slavery, inhumane treatment and forced labor under article 378 of the Guatemalan Penal Code.1 The mentioned article refers to “Crimes against the Duties of Humanity” and is used to characterize conducts which amount to War Crimes or Crimes Against Humanity. This provision succeeds in grouping all the previously mentioned conducts into one single article applying the technique of blank criminal law (Derecho Penal en Blanco).
The term “blank criminal law” comes from the German word Blankettstrafgesetz. It was first used by Karl Binding in its 1872 work: Die Normen und ihre Ubertretung. Binding defines “blank penal law” as: “those incomplete laws which simply set a certain penalty, leaving the mission to another norm to complete its determination, that is, the specific description of the criminal offense”.2 In other words, blank criminal laws are those criminal laws that do not fully describe the prohibited conduct. Therefore, they are completed by other laws to fulfill that description.
However, the application of this technique might pose a threat to the principle of nullum crimen sine lege, especially under positive law systems such as Guatemala’s. Different systems throughout Latin America have provided diverse approaches regarding the use of blank criminal laws; some of these systems have strongly limited this legislative technique, while others have almost unconditionally accepted its application. The following investigation will compare these different approaches and the interpretation given by them to the principle of legality under the existence of blank criminal laws. In other words, it will try to establish the line where what is strictly written as law blurs to allow for the existence of blank criminal laws. Given the unprecedented decision in Guatemala in which two former military officers where convicted for crimes against humanity and war crimes under local courts, the application of blank criminal law may become pivotal as a reference for future trials throughout the region.
II. Analysis of the Nullum Crimen Principle
The first challenge blank criminal law faces is the possible contradiction with the principle of legality. The latin formula “nullum crimen sine lege” is attributed to Paul Johann Anselm Feuerbach who came to highlight and specify one of the central achievements of the French Revolution (article 8 of the Declaration of Rights of Man of August 26, 1789, and the Constitution of September 3, 1791).3 However, Feuerbach did not literally refer to the nullum crime sine lege, as much as it’s interpreted from his reasoning.4 Thus, the principle nullum crime sine lege is an approach of Cesare Becaria in his work “On crimes and punishments”5 in which he explains “laws alone can decree punishments for crimes …that this authority can rest only with the legislator, who represents all of society united by a social contract.”6
It is thus important to highlight how the legal system approaches this mentioned principle: It has developed as a rule under international law prohibiting retroactive application of criminal laws.7 For instance, it is included in Article 15 of the 1966 International Covenant on Civil and Political Rights (ICCPR).8 Specifically, Article 15 provides:
No one shall be held guilty of any criminal offence on account of any act or omission that did not constitute a criminal offence, under national or international law, at the time when it was committed.
Nothing in this article shall prejudice the trial and punishment of any person for any act or omission that, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.9
The principle is also codified in key human rights treaties, including the African Charter on Human and People’s Rights,10 the European Convention on Human Rights,11 and the American Convention on Human Rights (ACHR).12 The relevant provision of the ACHR, Article 9, states: “No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed...”13
Importantly, although the ACHR, unlike the ICCPR, does not refer expressly to international law, the Inter-American Court of Human Rights has stated that the purpose of the nullum crimen provision is to safeguard the fundamental rights of life and liberty against arbitrary abuses of power.14Because the international community has long recognized that individuals may be prosecuted for acts committed in violation of international law,15such prosecutions would not constitute an arbitrary abuse of power and thus would be consistent with the principle enshrined in Article 9 of the ACHR.
Notably, international criminal tribunals and the European Court of Human Rights have expressly adopted a flexible approach to the prosecution of crimes that were only codified under customary international law at the time the relevant conduct was committed, recognizing the nature of international law and the severity of crimes that rise to the level of international crimes. For instance, while international criminal tribunals have made clear that the nullum crimen principle requires not only that the conduct was prohibited, but also that it gave rise to individual criminal responsibility under domestic or international law at the time it occurred,16 they have also held that the principle does not require that a crime was proscribed in the exact and precise terms in which it is later prosecuted.17 Rather, according to the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR), as long as individuals could have reasonably foreseen from the law what acts or omissions would entail criminal liability, the nullum crimen principle is satisfied.18 Thus, as the ICTY explained in the Hadžihasanović case: “In interpreting the principle of nullum crimen sine lege, it is critical to determine whether the underlying conduct at the time of its commission was punishable. The emphasis on conduct, rather than on the specific description of the offense in substantive criminal law, is of primary relevance.”19
In other words, “the principle of nullum crimen sine lege is satisfied if the underlying criminal conduct as such was punishable, regardless of how the concrete charges in a specific law would have been formulated.”20 Notably, the European Court of Human Rights has taken a similar approach in interpreting the nullum crimen provision of the European Convention on Human Rights,21 which is virtually identical to that found in the ICCPR22.
This approach towards the interpretation of the nullum crimen is logical in light of the nature of international law, as explained by one of the Nuremburg Military Tribunals established to prosecute the atrocities of World War II:
Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law has passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. [...] International law is not the product of statute for the simple reason that there is yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs, which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence that follows the events. Having attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth.23
Similarly, the ICTY has observed:
Whereas the criminalization process in a national criminal justice system depends upon legislation that dictates the time when conduct is prohibited and the content of such prohibition, the international criminal justice system attains the same objective through treaties or conventions, or after a customary practice of the unilateral enforcement of a prohibition by States. It could be postulated, therefore, that the principles of legality in international criminal law are different from their related national legal systems with respect to their application and standards.24
It is therefore relevant to emphasize the strong relationship between the principle of non-retroactivity and the principle that there is no crime or punishment except in accordance with law. However, some authors argue in favor of the making of retroactive laws in exceptional circumstances: in situations where the wrongdoer’s acts or omissions were morally wrong, though legal at the time when they were committed, that is, when the wrongdoer has transgressed the “natural law”.25 Such is the case of the previously mentioned Nuremberg Trials for which most jurists have agreed the actions of the Nazis were so immoral as to be an exception to the principle of non-retroactivity.26 Yet, even when few would argue that the Nazis found guilty at Nuremberg were treated unfairly or unjustly, they were in fact tried under an ex post facto law, thus ignoring the principle of non-retroactivity.
The scenario brought up in by the Nuremberg trials is that, even when the principle of non-retroactivity is considered a fundamental human right, “retroactive law has been made, and continues to be made, in societies which ostensibly accept that principle as being a [fundamental] right”.27 This then leads to the interpretation that retro-active law-making is eventually and tacitly accepted.
III. Blank Criminal Law as a Legislative Tool
The application of blank criminal law as a legislative technique has been described by the Guatemalan Courts in a very recent decision regarding the initiation of trial against former president Efraín Ríos Montt.28 In its decision the Court explained the application of article 378 regarding war crimes and crimes against humanity. This was extended by defining it as a “blank penal law”.29 Thus, the nature of article 378 as a “blank penal law” serves as a legislative tool, which refers to international covenants or customary laws (jus cogens), where the norm is fully described.30 Therefore a legislative tool should be understood as a technique that by the application of a set of rules leads to correct formulation and design of a pre-set norm content, resulting in a juridical-technical harmonization of the norm in itself and with regard to other norms.31 Thus, the use of this legislative tool does not collide with the principle of legality: as mentioned by Muñoz Conde and García Aran “once completed, a blank criminal law is as much of a criminal law as any other. From a structural point of view, a blank criminal law does not raise special difficulties, the hypothesis contained in the non-penal norm belongs to the criminal law, integrating or completing it.”32
In the case of criminal law Mir Puig explains: “neither the factual situation, nor the legal consequences in criminal law are completely described on any provision stated in the Penal Code. In this sense, all provisions in the Penal Code are individually considered as incomplete propositions”.33 Therefore, blank criminal laws should not be interpreted as threatening to the principle of legality, except in those cases in which the complementary non-penal law fails to provide a clear description. In that case, both the non-penal and the criminal law would become ineffective.34
The application of blank criminal law becomes useful when the subject matter proofs extremely changeable, flexible or complex to be described by a single provision, and therefore demands an immediate reference to another law.35 This means that the economy and society are subject to constant evolution. In this sense, the use of such legislative tools becomes necessary. Otherwise, a frequent revision of every prohibited conduct would be necessary to adapt to this constant evolution.36
The definition of blank criminal law proposed has been modified through time and inserted into different legal systems. It has been mostly influenced by their particular characteristics and legal standards. Edmund Mezger37 would broaden this concept by including two new applications:
The supplement to the criminal conduct is described within the same law.
The supplement to the criminal conduct is described in another law but it emanated from the same body of law.38
This addition would then divide the concept of blank criminal law into two: Binding’s definition in which the supplement to the described conduct is found in another body of law as a blank criminal law in a strict sense, and Mezger’s addition as blank criminal laws in a broad sense. The addition of the two previously mentioned applications should then be interpreted as an external legislative tool.39 It is important to note that in all three applications the necessary supplement is considered as an accessory part of the prohibited conduct. Nevertheless, the whole supplemented prohibited conduct has the same legal effects as any other, specially regarding its significance as a legal base for illegality.40
IV. The Application of Blank Criminal Law in Latin America
The development process and socio-economic transformations that have taken place in Latin America are placing new demands on the exercise of the law. This development not only comes from the field of economics and business but it is also emerging as a reflection from other social needs of particular importance such as the prevention and repression of crime, the protection of the family, and the environment and the protection of certain disadvantaged groups. Moreover, the recent trend towards globalization of national economies and societies is creating new challenges to international law and its application, therefore imposing the internationalization of legal relations and law.41
In this context the approach towards the exercise of criminal law in Latin America should rely on appropriate resources to strengthen and also to complement its range of protection, but respecting the limits imposed by the principle of legality or Nullum crimen, nulla poena sine lege. This means that even under the premise of illegality for the application of criminal figures through international law at the domestic level, the use of blank criminal laws serves as an exception to the principle of legality, and therefore opens a channel to include international standards described through covenants and customary international law into domestic systems in the region.
1. The Chilean Separation Into Proper, Improper and Open Penal Laws
The use of blank criminal law in Chile finds its boundaries within its own Constitution, as stated in article 19, section 3, paragraph 8, which reads: “No crime will be punished with a penalty other than that specified by a law promulgated prior to its perpetration, except where a new law favors the affected [person]. No law can establish penalties unless the conduct that [the law] penalizes is expressly described in it.”42
As described through this constitutional provision, the application of blank criminal law is somewhat accepted under the Chilean system. In this sense, the Chilean law uses a similar distinction for blank criminal laws distinguishing them in accordance with their legal status and the hierarchical level of the supplemented prohibited conduct.43 Thus, improper criminal laws in blank are those that make a reference to a law in strict sense; proper criminal laws in blank are those that find their supplement in lower legal instruments such as regulations, or any other form of rules emerging from an administrative authority; and finally a third category defined as open penal laws, which are laws with no supplementary law whatsoever, nor lower level regulations to refer to, but its determination or supplement is delivered to the judge.44
The Constitutional Tribunal in Chile has tolerated the existence of some blank criminal laws in their proper form. Even when these legal instruments lack a clear description of the prohibited conduct, their reference to a lower level regulation protects them from colliding with the principle of legality. Still, the Court demands three characteristics from the referred law to prevent it from being constitutionally inapplicable:
The referred regulation must include the central core of the prohibited conduct;
The referring law must clearly state the referring regulation to which it’s referring;
The referred regulation must provide a certain level of clarity.45
The Chilean Tribunal has approached the applicability of blank criminal law by focusing its analysis on the description provided by the original law.46 If such description or definition proves insufficient then the legal provision shall be declared unconstitutional. Nevertheless, if the mentioned provision at least describes the central core of the prohibited conduct then other rulings or administrative provisions may supplement it.47 This is the case of a proper blank criminal law, which by nature demands a clear and direct reference to the regulations, or any other form of rules emerging from an administrative authority that complements it.
It has been the Tribunal’s reasoning that both improper and proper blank criminal laws will always be constitutional. Only in the event that the legal supplement for improper blank criminal laws or any of the previously mentioned characteristics for the proper blank criminal laws are missing, then these will turn into open penal laws. The latter will in fact be considered unconstitutional given that they miss a direct reference to any body of law, thus colliding with the principle of legality.48
2. Argentina and the Mouviel Case
The distinction between proper and improper blank criminal law has also been studied in Argentina. Criminalist Ricardo C. Núñez distinguishes the first as: those “in which particular infringements are actually designed by the supplementary legal act”49 therefore evading any description of the sanctioned conduct, and so appointing the power to determine the infringement to another law.50Improper blank criminal laws, on the contrary, are those that are limited to sanction certain prohibited conducts on which an specific law or regulation has already ruled.51 In these circumstances, even when the prohibited conduct depends on another legislative body, the main law is the one that specifies such conduct, therefore excluding the description in the supplementary law.52
Improper blank criminal laws may also be distinguished as those that perform an internal remission within the same law, a different article for example; while these same laws may perform an external remission to another formal law.53 This means that the main law establishes the sanction but then it refers to another article within this same law or to another law at the same hierarchical level to establish the prohibited conduct.54
When analyzing the principle of legality in Argentina against the use of blank criminal laws the Mouviel case emerges as an inevitable reference55. The case dealt with the arrest of Raúl Mouviel and others for the violation of Police Edicts for public disorders. The defendants were detained for 30 days as determined by the Federal District’s Police Chief based on Art. 7 inc. a), of the Argentine Federal Police Statute. The mentioned norm authorized the Police Chief to issue edicts within the competence allocated by the Criminal Procedural Code with the purpose to repress acts of violence that were not considered by the legislator.56
The decision was then appealed before the Penitentiary Criminal Judge, who sustained the decision. The defendants made an extraordinary review arguing that the current regime simply concentrated in the Police Chief all three legislative, executive and judiciary powers, which would constitute a violation of the principle of separation of powers.57
The Supreme Court reversed the already issued police edicts based on Article18 of the Argentinean Constitution, which clearly states: “No inhabitant of the Nation may be punished without previous trial based on a law enacted before the act that gives rise to the process, nor tried by special committees, nor removed from the judges appointed by law before the act for which he is tried.”58 According to this same reasoning Article 19 states that: “The private actions of men that in no way offend public order or morality, nor injure a third party, are only reserved to God and are exempted from the authority of judges. No inhabitant of the Nation shall be obliged to perform what the law does not demand nor deprived of what it does not prohibit.”59 It is thus highlighted that only the legislative power is responsible for establishing, through laws, the description of the prohibited conducts and their corresponding sanctions.
The executive power is, however, entitled to issue “the instructions and rules necessary for the enforcement of the laws of the nation, without altering their spirit with regulatory exceptions”.60 Nevertheless, the Supreme Court has stated in previous sentences that even if the Executive is granted the power to establish certain police regulations, it means only the faculty to implement regulations that are already defined by the legislature.61
In its opinion on the Mouviel case, the Attorney General explains that the reference to another law does not create major problems.62 But when the referral from blank criminal laws involves administrative regulations, two situations must be considered: first, if the prohibited conduct is described by criminal law but the description of such conduct must be incorporated with a factual element provided by the Executive, in which case there would be no violation of the principle of legality; and second, if the prohibited conduct is not specified by criminal law but instead it refers to administrative regulations, in which case they should be considered as an example of Article 99.2 of the Constitution.63
The Argentinean Constitutional Tribunal therefore considers blank criminal laws admissible only if they meet the following requirements:
The remission to another regulation must be unavoidable by the complexity or extension of the issue presented.
The central core must be regulated by the law that it is referring to, while the referred regulation may only verse on secondary issues.
The referral must be clear and explicit.64
3. The Constitutional Court in Colombia and the Possibility of Sentence Revision
The principle of legality in Colombia is described under Article 29 of the Constitution as follows:
Article 29. Due process will apply to all legal and administrative measures.
No one may be judged except in accordance with the relevant previously written laws before a competent judge or tribunal following all appropriate formalities in each trial.
In penal cases, a permissive or favorable law, even when ex post facto, will be applied with preference over restrictive or unfavorable alternatives.
Every person is presumed innocent until proven guilty according to the law. Everyone criminally charged is entitled to counsel and to chose a defendant or to be appointed one during the investigation and trial; to a fair and public hearing without undue delay; to present evidence and to examine witnesses for the prosecution; to challenge the conviction, and to not be prosecuted twice for the same offence.
Evidence obtained in violation of due process is null and void as of right.65
This provision establishes that by Constitutional level, the criminal law must indicate or describe in a complete way the structural elements of the prohibited conduct. In other words, there is no crime if the law has not considered it as such, and this is not accomplished until a clear description and a penalty for it are provided (nullum crimen sine lege-nulla poena sine lege).66
The Supreme Court has clearly explained the principle of legality in the following terms:
If the criminal provision appears vague, uncertain, ambiguous or erroneous, those who are called upon to apply it will then be necessarily exercising an arbitrary power, causing an unfair disruption in the sphere of individual liberties, which is inviolable, and Constitutionally guaranteed.
The principle of legality must be aligned with the following essential features of normativity: 1. Every criminal substantial law, whether it constitutes an infraction, a crime, or a disciplinary sanction, must be hierarchically respectful of the Constitution; 2. It must be legally applicable prior to the commission of the crime; 3. It must prove specific, clear, certain, sharp, unequivocal, exhaustive and clearly delimited; 4. Thus it may not be deemed valid when it appears implicit, ambiguous, equivocal, extensive or analogical, with the exception of the latter when it is used to favor the prosecuted67.
Under these boundaries, the criminal code in Colombia (Law 599, 2000) provides the following:
Article 6. Legality. No one may be tried except in conformity with the laws that predate the act of which the person is accused, before a competent court or tribunal and in accordance with the procedure appropriate to each case. The preexistence of the law is also applicable for the referral of criminal blank laws.68
The Constitutional Court in its Sentence C-559/99 has revised the implementation of blank criminal law in Colombia.69 In the Court’s reasoning blank criminal laws are characterized by the scope of their prohibition, which cannot be autonomously defined, instead it depends on different provisions of the Law.70 The Court finds these legislative tools constitutionally valid if “the remission to another law allows to unequivocally establish the scope of the prohibited conduct and the corresponding sanction”.71
On a similar matter the Constitutional Court in Colombia used a similar technique as the High Risk Court (A) referring to IHL standards on its Sentence C-004/03. This decision establishes that it is necessary for the Procedural Criminal Code in Colombia to include the possibility of reopening investigations concerning human rights violations and serious IHL infringements in cases in which the acquittal of a defendant results from a protruding dereliction of the State’s duty to investigate, these behaviors in a serious and impartial manner.72 Article 220 concerning revision causes does not include that provision. So the code has a legislative gap. The Court resolves this situation by determining the nature of the crimes added to the State’s obligation to prosecute these crimes. Therefore, such gap should and must be filled through a sentence that integrates the possibility to revise those cases involving the rights of human rights victims as grave breaches to IHL.73
The Constitutional Court in Colombia determines that Article 220 may be invoked in the revision of cases of preclusion of investigation, cessation of proceedings or dismissal of charges, in which human rights violations or serious IHL infringements are involved, and a domestic court judgment or a decision by an international human rights monitoring and follow-up body, formally recognized by Colombia, has found that there exists a new fact or evidence not known at the time of the hearing.74 In this sense, it is the duty of the judge in Colombia to abide by such possibility even when it’s not literally expressed in the Criminal Code.
4. Costa Rica and the Immediate Reference to International Law
The inclusion of international crimes as a particular prohibition within the criminal normativity in Costa Rica provides a more tolerant application of blank criminal laws in the State. Thus in alignment with the principle of legality as defined by its Constitution where it states: “Article 28. No one may be disturbed or persecuted for expressing his opinions or for any act that does not infringe the law.”75 Article 374 of Costa Rican Penal Code states the following:
Crimes of international level: Article 374. For those who direct or take part in international organizations with the purpose of trafficking slaves, women or children, drugs, or [those who] carry out acts of terrorism, or infringe human rights treaty provisions ratified by Costa Rica, the penalty shall be a term between ten to fifteen years’ imprisonment.76
Under this provision, it becomes clear that Costa Rica easily abides by the principle of legality without the use of an exhaustive description of the criminal conduct. Although, it seems valid to state that the allusion to this type of blank criminal laws directs to figures provided by conventional standards, consideration must be given the fact that criminal law will not be sufficiently covered by the mere reference to crimes described by customary international law. The exercise of customary international law demands a widespread and constant practice by the State and its correspondent opinio iuris.77 Nonetheless, Costa Rica’s use of criminal laws in blank provides an interesting reference to international law as a complement to its own description of criminal conducts. As it will be explained below, Guatemala uses a very similar technique for the implementation of international conventional standards and customary international law into its own criminal system.
The Constitutional Court in Costa Rica has found that the application of blank criminal laws is constitutionally acceptable as long as the referral carried out by the law is done towards a provision at the same level. Thus, sentence 6785-05 stated the following:
...in the particular case, what the appellant states is that the criminal conduct attributed to him, as detailed in Article 213 of the Criminal Code, is incomplete. Therefore to be deemed understandable and applicable it must be supplemented by Article 209 of the same law. This Court has previously ruled in favor of the constitutionality of such specific legislative technique [blank criminal laws], which is used to complement legal standards in order to configure and complete all the minimum necessary elements of the offense.78
Under the Court’s analysis the contested law is fully constructed by all the required elements for a criminal conduct: the active subject, the description of the conduct, and the sanction for it, and then it does not prove illegal in the light of the principle of legality.79
5. The Principle of Nullum Crimen Under Guatemalan Domestic Law
The principle of legality is also firmly rooted in Guatemalan law. For instance, Article 5 the Constitution provides: “All persons have the right to do what the law does not prohibit; [the persons] are not obligated to obey orders that are not based in law or issued in accordance to it. Neither may they be persecuted or harassed for their opinions or for acts that do not imply an infraction of it.”80 Furthermore, Article 17 of the Constitution provides: “The actions or omissions that are not qualified as crimes or faults and that [are] punishable by a law [that is] prior to their perpetration[,] are not punishable.81
While the Guatemalan Constitutional Court has held that nullum crimen “demands that the criminal conduct is fully described in the positive law,”82 this requirement does not preclude the prosecution of acts that were criminalized only as a matter of customary international law at the time they were committed.83 Article 149 of the Guatemalan Constitution expressly incorporates customary international law as part of domestic law insofar as it governs its international relations in accordance with international principles, rules and practices.84 This means that a rule of international law can be enforced without being enacted by Congress. This is only valid if the existence and extent of a certain rule of international law has been duly proven to be binding and accepted by the international community as a whole, and if it has never been rejected by the State under consideration.85
However, the Court’s reasoning in a case involving allegations of torture as a war crime leads to a contradiction against this provision when it states:
Resorting to international norms cannot restore the vulnerable condition of such criminal acts regarding torture (or any other crime under IHL), even if they are norms of ius cogens that demand universal application. Regarding the principle of legality, as referred in the preceding paragraphs, for a criminal offense to be linked with the commission of criminal acts, it must be fully described within a norm, otherwise it would violate the freedom of will granted to the State’s citizens, particularly taking into account the prohibition of analogy and broad interpretation embodied in criminal law.86
The Court goes further to state: “for this reason, the prohibited conduct must be concrete. If the qualifying elements for this conduct are not reached, then the constitutional parameters for the creation of offenses will not be met.”87
Given the forgoing, it is clear that, to be prosecuted in Guatemala, an act must have been criminalized either under the domestic law applicable in the State or under international law at the time it was committed. The charges in the Sepur Zarco case have been brought under Article 378 of the Guatemalan Penal Code, which states: Crimes against the Duties of Humanity: Whosoever violates or infringes humanitarian obligations, laws or covenants regarding prisoners or hostages of war or those wounded in battle, or whosoever commits any inhuman act against the civilian population or against hospitals or places designated for the wounded will be sentenced to 20-30 years in prison.88
While this provision clearly criminalizes violations of international humanitarian law, it does not “fully describe[s]” the individual violations that fall within its scope, as required by the Guatemalan Constitutional Court in its analysis of the principle of legality cited above.89 Nevertheless, the accused in the present case were charged with crimes against the duties of humanity in the specific forms of sexual violence, sexual slavery, domestic slavery, and outrages upon personal dignity.90 Indeed, during the stage of proceedings intended to determine whether there is a basis for committing a person to trial, the First Instance Judge, Miguel Ángel Gálvez, permitted the case to go to trial against the accused on the basis of these specific charges, arguing, in part, that Article 378 is an open or “blank, criminal law,”91 meaning that although it does not describe in detail the conduct proscribed, it makes reference to other sources of law and allows a court to define the proscribed conduct by reference to those other sources.92 Judge Gálvez explained that the Penal Code, which Guatemala adopted in 1976, created various offenses of international concern, among them Article 378, which “of course refers us to international conventions and especially the [1949] Geneva Conventions” ratified by Guatemala in 1952.93 Noting that the provision had to be interpreted in light of developments in international law, Judge Gálvez went on to point out that, Article 378 was intended to refer not only to war crimes but also to crimes against humanity.94 Thus, under Article 378 of the Guatemalan Penal Code, this court has jurisdiction to adjudicate acts constituting crimes under customary or conventional international law binding on Guatemala.
V. Conclusion
Though useful, the legislative tool of blank criminal law finds a certain level of resistance within the legal systems reviewed. It is a common understanding that such a tool can only be exercised as an exception to heavily positivized legal systems. For this reason States like Chile and Argentina opt for strict applications of blank criminal laws in only allowing the reference they provide through rulings of lower hierarchical level. On the other hand, States like Costa Rica and Guatemala use blank criminal laws as a more open reference to notably complex subjects like International Humanitarian Law and customary international law. On either approach, it becomes important to bring to attention the thoughts of Luis Miguel Reyna when he states that blank criminal laws do not particularly interfere with the principle of legality, except only in those cases in which the non-penal law makes an unclear description of the criminal conduct.95
Nevertheless, it is also notable how the use of blank criminal law has become a more frequent trend starting in the nineties to the date. With the exception of Argentina, the use of blank criminal laws has become a more recent approach by the reviewed States. The period coincides with the transition of these legal systems from complex situations of human rights violations towards the inclusion of human rights standards into their legal orders. This period includes the ending of the Military dictatorship in Chile in 1989; the demobilization of the M-19 guerrilla and the new Constitution signed in 1991 in Colombia, and, the peace process in Guatemala in 1996. These transitions where followed by a strong implementation of International Human Rights Law and International Criminal Law into their legal systems.
It appears that the complexity and length of the mentioned bodies of law proved difficult enough for this States to handle. Then, the use of legal tools as criminal laws in blanks serves as a practical way to resolve this. Nevertheless, the requirements the nulla poena sine lege demands, proves that regardless of the legislative tool chosen by each State, the existence of an internal law which in some way translates the international standards for international crimes, becomes necessary.
In other words, the use of legislative tools such as blank criminal law may be understood as the fulfillment of the State’s obligation to “adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to”96 the rights and freedoms described by the relevant covenant. In the words of the Permanent Court of International Justice: “a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.”97
As mentioned above, the decision regarding the conviction of two former Military men in Guatemala constitutes the first case in which a local Court tries and sentences individuals for crimes against humanity and war crimes. Notably, the decision was taken making an strict reference to blank criminal laws that might not appear as popular within the region. However, its application is positive for convictions like these.
It is not unfair to say that the Guatemala case has become an example for the enactment of IHL provisions throughout the region, not only for undertaking the necessary measures, but most importantly for bringing such mea-sures to the highest level of practice.
