Justice Delayed, Not Denied: Statutory Limitations and Human Rights Crimes

Hessbruegge, Jan Arno, Georgetown Journal of International Law

IV. IMPRESCRIPTIBILITY OF OTHER HUMAN RIGHTS CRIMES?

As this section will demonstrate, a number of human rights treaties, as interpreted by their principal oversight mechanisms, obligate states to remove statutes of limitations for the prosecution and punishment of human rights crimes that do not amount to crimes against humanity, genocide, or war crimes. A duty to that effect is also gradually emerging under international customary law.

A. American Convention of Human Rights

The Inter-American Convention on Forced Disappearance of Persons of 1994 and its Article VII(1) stipulate that criminal prosecution and punishment of forced disappearances must not be subject to statutes of limitations. (73) The Inter-American Court, in its jurisprudence on the American Convention of Human Rights, has extended this principle to all human rights crimes.

Having long established in its jurisprudence that the American Convention entails an obligation to identify, prosecute, and punish the perpetrators of serious human rights violations, (74) the Inter-American Court held in its groundbreaking Barrios-Altos decision that:

   amnesty provisions, provisions on prescription and the
   establishment of measures designed to eliminate responsibility are
   inadmissible, because they are intended to prevent the
   investigation and punishment of those responsible for serious human
   rights violations such as torture, extrajudicial, summary, or
   arbitrary execution and forced disappearance, all of them
   prohibited because they violate non-derogable rights recognized by
   international human rights law. (75)

The holding is ambiguous. It can be narrowly read as only barring amnesty and prescription provisions that were designed with the specific intent to ensure impunity for serious human rights violations. A wider interpretation of Barrios-Altos would consider that it is not admissible to apply any amnesty, prescription, or other procedural provisions to the extent that they have the effect of causing impunity for serious human rights violations.

The context of Barrios-Altos, which concerned Peruvian amnesty laws designed to shield officials of the Fujimori administration from prosecution, and the holding's plain English text, which inquires whether the prescription provision was "designed" or "intended" to create impunity for serious violations, support the narrow interpretation, focused on the intent of the drafters. (76)

However, through its more recent jurisprudence, discussed and cited in the subsequent paragraphs, the Inter-American Court indicates that it favors a wide interpretation of Barrios-Altos that generally prohibits states from applying statutes of limitations with the effect of barring the prosecution or punishment of any human rights crimes.

In the Bulacio decision of the Inter-American Court, an Argentinean court had held that a police officer could not be convicted for the summary execution of a teenage boy, as the defendant had successfully dragged out the proceedings until the statute of limitations under ordinary Argentinean criminal procedure law had lapsed. (77) Recalling Barrios-Altos, the Inter-American Court held that there had been a violation of the obligation to investigate and prosecute serious human fights violations, as the trial court had failed to prevent the delays. (78) As an appeal against the decision of first instance was still pending in the Argentinean courts, the Inter-American Court effectively ordered Argentina's courts to disregard the lapse of the statute of limitations:

   In accordance with the obligations undertaken by the States
   pursuant to the Convention, no domestic legal provision or
   institution, including extinguishment, can oppose compliance with
   the judgments of the Court regarding investigation and punishment
   of those responsible for human rights violations ... In light of
   the above, it is necessary for the State to continue and conclude
   the investigation of the facts and to punish those responsible for
   them.' (79)

The Argentinean Supreme Court complied with the Inter-American Court's decision and ordered the lower court to disregard the statute of limitations (although it noted sourly that it had to restrict the defendant's fights to comply with its international obligations). (80)

The case of the Gomez-Paquiyauri Brothers also concerned an extrajudicial killing of teenagers. Thirteen years after the killing, the mastermind of the killing, a Peruvian police captain, was still at large and apparently sought to rely on an ordinary statute of limitations to escape punishment. The Court reaffirmed its Bulacio jurisprudence and indicated that the police captain must not be able to rely on prescription to escape punishment, even though in that case there was no specific allegation about the defendant having dragged out the proceedings. (81)

In more recent judgments, the Inter-American Court has adapted its standard formulation of the Barrios-Altos principles to clarify that no non-exculpatory defenses must be applied with the effect of impunity for human rights crimes in holding that "the State may not apply amnesty laws nor argue prescription, non-retroactivity of the criminal law, former adjudication, the non bis in idem principle ... or any other similar means of discharging from liability, to excuse itself from this obligation [to identify, prosecute and punish those responsible for serious crimes]." (82)

B. International Human Rights Treaties

International Human Rights Treaties, as interpreted by the United Nations Treaty Bodies overseeing their implementation, prohibit making torture and extrajudicial killings subject to prescription.

Among the nine major international human rights treaties, only the International Convention for the Protection of All Persons from Enforced Disappearance specifically addresses the question of prescription. Unlike the Inter-American Convention, Article 8(1) of the International Convention only requires that "(a) any statute of limitations in respect of enforced disappearance and related criminal proceedings are of long duration and proportionate to the extreme seriousness of this offence and (b) commences only from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature." (83) Thus, the International Convention recognizes that enforced disappearances can in principle be subject to prescription. In practice, however, the continuous nature of crimes involving disappearances renders them quasi-imprescriptible, as will be discussed below. (84)

The Convention against Torture (CAT), while setting out a general duty to criminalize torture, is silent on the question of whether torture-related offenses are subject to prescription. Some have concluded from the absence of a norm that CAT does not prohibit statutes of limitations for torture. In the case concerning the extradition of Argentinean junta henchman Ricardo Miguel Cavallo, a Mexican court found that even though Mexico had in principle a duty under the Convention against Torture to prosecute or extradite the accused, he could not be extradited on the charge of torture because the statute of limitations under Mexican law had expired with regard to the alleged torture. (85) The Mexican Supreme Court upheld the lower court's findings on prescription. (86)

However, the interpretation of CAT by relevant international oversight mechanisms, which is particularly authoritative, points in the opposite direction. The United Nations Committee against Torture has repeatedly affirmed that, taking into account their grave nature, acts of torture must not be subject to any statute of limitations. (87) This view has been echoed by the United Nations Special Rapporteur on Torture. (88)

The United Nations Human Rights Committee, which has developed a significant body of jurisprudence on the interpretation of the International Covenant on Civil and Political Rights, initially took a more guarded position on the question of the permissibility of statutory limitation in relation to crimes involving serious violations of the Covenant. The Committee only went as far as recommending that states remove "unreasonably short periods of statutory limitation" in relation to serious violations such as torture and ill-treatment, arbitrary killings and enforced disappearances. (89)

In more recent jurisprudence, however, the Committee has called for the abolition of statutes of limitations in relation to serious violations of the Covenant. (90) Similarly, the Special Rapporteur on Summary Executions has recommended that Brazil, a State Party to the Covenant, abolish statutory limitations for intentional crimes against life. (91)

C. An Emerging Norm under Customary Law?

Customary international law is moving towards prohibiting prescription of human rights crimes, even if they do not amount to international core crimes. In 2005 already, Diane Orentlicher, then United Nations Special Rapporteur to Update the Set of Principles to Combat Impunity, noted that the "general trend in international jurisprudence has been towards increasing recognition of the relevance of this doctrine [of imprescriptibility] not only for such international crimes as crimes against humanity and war crimes, but also for gross violations of human fights such as torture." (92)

Others have gone further and taken the position that all human rights crimes are imprescriptible according to international law as it stands. As early as 1998, for instance, the Special Rapporteur of the United Nations Sub-Commission on Human Rights on Contemporary Forms of Slavery, Gay McDougall, stated that there is an "internationally accepted principle that there are no statute of limitations barriers to the prosecution and compensation of serious violations of human rights and humanitarian law." (93) The United Nations High Commissioner for Human Rights has stated that there was no statute of limitations under international law for violations such as torture, extrajudicial killings, forced disappearances, and rape. (94)

The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the UN General Assembly in 2006, also proclaim the imprescriptibility of human fights crimes (albeit with a proviso):

   Where so provided for in an applicable treaty or contained in other
   international legal obligations, statutes of limitations shall not
   apply to gross violations of international human rights law and
   serious violations of international humanitarian law which
   constitute crimes under international law. (95)

Conversely, it is worth recalling that, in adopting the International Convention on the Protection of All Persons from Enforced Disappearance in 2006, states have recognized that enforced disappearances can be made subject to prescription, as long as the conditions set by Article 8 of the International Convention are complied with. (96)

The strongest case for imprescriptibility beyond genocide, crimes against humanity and war crimes can probably be made for torture as a sui generis crime given its jus cogens character. In this respect the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia found that one of the consequences of the peremptory nature of the prohibition of torture (jus cogens) "include the fact that torture may not be covered by a statute of limitations." (97)

There is an undeniable logic in the proposition that the obligation to prosecute and punish torturers, which stems from the prohibition of torture as jus cogens, should override domestic statutes of limitations that stand in the way of prosecution. (98) Indeed, the Updated Set of Principles to Combat Impunity, prepared by Special Rapporteur Orentlicher and noted with appreciation by the UN Human Rights Council, allude to the imprescriptibility of human rights crimes amounting to jus cogens violations: "Prescription shall not apply to crimes under international law that are by their nature imprescriptible." (99) However, state practice has not followed this approach. Only nine states that otherwise apply statutes of limitations have made torture an imprescriptible crime. (100)

It may be premature to consider all human rights crimes imprescriptible. However, customary international law still imposes limits on the application of statutory limitations to human rights crimes because statutory limitations that are designed to shield particular individuals or categories of perpetrators on the basis of their ethnicity, gender, or other discriminatory grounds, while not applying to others who committed comparable crimes, are not permissible, since such statutes violate the principle of non-discrimination under customary international law. (101)

V. RETROACTIVE APPLICATION OF THE IMPRESCRIPTIBILITY PRINCIPLE

As more and more states abolish statutes of limitations for human rights crimes, the question arises to what extent this may be done with retroactive effect in respect of cases where the statute of limitations is currently running, let alone where it has already expired. This section will outline that the retroactive abolition of statutes of limitations applying to international core crimes is possible, while the law is not settled with regard to other human rights crimes.

The question of retroactivity has been intensely debated since the adoption of the 1968 Convention, which applies to genocide, crimes against humanity, and war crimes "irrespective of their date of commission" (see Article 1) and thereby even requires states parties to abolish statutory limitations with retroactive effect. At the time, many states took issue with the retroactive effect of the Convention, arguing inter alia that it breached the prohibition of the retroactive application of criminal offenses). (102) In international law, this prohibition is laid down inter alia in Article 15 of the International Covenant on Civil and Political Rights (ICCPR), which stipulates that:

   No one shall be held guilty of any criminal offence on account
   of any act or omission which did not constitute a criminal
   offence, under national or international law, at the time when it
   was committed.

Underlying the question about whether statutes of limitations can be abolished with retroactive effect is a doctrinal debate about their character. One school of thought regards a statute of limitations as a procedural bar, which precludes prosecutorial action but does not affect the culpability of the perpetrator. (103) According to this view, it is sufficient that the perpetrator was aware of committing a crime at the time of acting to comply with the prohibition of retroactive criminal laws. The perpetrator has no claim to insist that such a crime can only be pursued for a given number of years and the State may retroactively abolish statutes of limitations for any crime at any point in time, even in respect of crimes that have already become prescribed.

Others consider prescription to be a substantive defense that removes the perpetrator's guilt, justified by the assumption that after a certain period punishment is no longer needed and by the suspect's right to legal certainty about when the statute of limitations has run prevails. (104) On this basis, any retroactive amendment of statutes of limitations to the disadvantage of the suspect is prohibited.

A third school of thought balances the two positions and distinguishes between situations in which the statute of limitations is still running and others in which it has already expired. Only in the latter case, the extension or abolition of the …

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Publication information: Article title: Justice Delayed, Not Denied: Statutory Limitations and Human Rights Crimes. Contributors: Hessbruegge, Jan Arno - Author. Journal title: Georgetown Journal of International Law. Volume: 43. Issue: 2 Publication date: Winter 2012. Page number: 356+. © 2008 Georgetown University Law Center. COPYRIGHT 2012 Gale Group.

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