Resisting the Duty to Prosecute

Abstract

Abstract This chapter discusses the reluctance of Brazilian and Bulgarian national judiciaries to prosecute gross human rights violations committed by the military and the communist dictatorships during the Cold War. In both countries, the lack of political will to reverse impunity and the existence of a dominant legal education nearly impermeable to new trends in international criminal law (ICL) led to incremental impunity. In Bulgaria, the application of the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity to communist crimes was declared unconstitutional in 2016—even though Bulgaria had ratified this instrument in 1969. In Brazil, the 1979 Amnesty Law is still in force despite various rulings by the Inter-American Court of Human Rights that called upon the Brazilian government and judiciary to void it and conduct investigations into the crimes of the military regime. Through these two case studies, the chapter illustrates another facet of the fragmentation of ICL: the rejection of the duty to prosecute, an emergent principle that has gained global momentum in the first decade of the twenty-first century.