TABLE OF CONTENTS I. INTRODUCTION II. THE MORAL CASE FOR MAKING HUMAN RIGHTS CRIMES IMPRESCRIPTIBLE III. IMPRESCRIPTIBILITY OF GENOCIDE, CRIMES AGAINST HUMANITY, AND WAR CRIMES IV. IMPRESCRIPTIBILITY OF OTHER HUMAN RIGHTS CRIMES? A. American Convention of Human Rights B. International Human Rights Treaties C. An Emerging Norm under Customary Law? V. RETROACTIVE APPLICATION OF THE IMPRESCRIPTIBILITY PRINCIPLE VI. INTERNATIONAL PRINCIPLES SUSPENDING THE PRESCRIPTION OF HUMAN RIGHTS CRIMES A. Continuous Violation Doctrine B. No Prescription Without Effective Recourse VII. NON-PRESCRIPTIBILITY OF REPARATION CLAIMS BASED ON HUMAN RIGHTS CRIMES? A. International Treaty Law B. International Customary Law VIII. CONCLUSION I. INTRODUCTION
In 1965, Germany faced the expiration of the twenty-year statute of limitations under German law for murders committed during the Third Reich between 1933 and 1945. If that had happened, the German State would have no longer been able to prosecute individual perpetrators of the Holocaust, although many key culprits still enjoyed impunity. A few months before this crucial date, Ernst Benda, a young German parliamentarian, introduced a bill to extend the statute of limitations. In a heated debate, some parliamentarians, eager to "close" this chapter of history, argued that considerations of legal certainty and the rule of law should prevail, and Nazi crimes should be allowed to become time-barred. In the end, Benda carried the day with his passionate plea that "the sense of a justice of an entire people would be corrupted in an unbearable manner if there was no retribution for murder, even though retribution would be possible." (1) Germany's parliament first extended and then completely abolished statutory limitations for the crimes of genocide and murder.
Almost half a century later, the legal problem and the underlying debate between justice for the victims of the worst crimes and the formal precepts of the rule of law remains very much alive. In January 2011, Jean-Claude "Baby Doc" Duvalier unexpectedly returned to Haiti after twenty-five years of exile in the South of France. After the death of his father Francois "Papa Doc" in April 1971, then nineteen-year-old Duvalier proclaimed himself President of Haiti, a position he defended with an iron fist until his overthrow in February 1986. The United Nations has called for the former dictator to be prosecuted for his alleged crimes linked to serious human rights violations. (2) However, at this stage, it is not certain whether Duvalier will be brought to trial, let alone convicted. One key problem lies in the fact that under Haitian criminal procedure law even the most serious crimes become time-barred, if no indictment or prosecution has been initiated within ten years after the act in question was committed. (3)
Similar legal problems are arising all over Latin America as the crimes of military dictatorships of the 1970s and 1980s are finally being addressed as part of a movement for "post-transitional justice." (4) The on-going transition from oppressive autocracies to genuine democracies in the Middle East and North Africa will also pose questions about how serious crimes that took place decades ago can still be prosecuted.
This Article examines the impact of international law on the application of statutory limitations in cases involving gross human rights violations and serious breaches of international humanitarian law. In this context, two categories of violations need to be distinguished. First, there are the core international crimes of genocide, crimes against humanity, and war crimes. (5) A second category is comprised of other serious violations attributable to the state: acts of torture, summary executions and extrajudicial killings, forced disappearances; enslavement, rape, and comparably serious forms of sexual violence constitute gross human rights violations in their own right, even if they do not amount to crimes against humanity, war crimes, or genocide, for lack of being either systematic or widespread, linked to armed conflict, or driven by a genocidal intent. This Article refers to the ensemble of both categories of violations as "human rights crimes," given that all of these violations breach basic international norms for the protection of the human person and that all States are obligated under general international law to criminalize these acts. (6)
The terms "prescription" and "statutory limitations" are used interchangeably in this Article. Both institutions provide a non-exculpatory procedural defense that bars the prosecution of a crime, the adjudication of a civil claim, or the execution of a civil or criminal judgment after a fixed period of time has lapsed in which no relevant legal action was taken. Prescription is widely used in civil law systems, a reflection of its strict use in Roman law where its roots lie. (7) Conversely, common law systems traditionally did not provide for fixed prescription periods and left it instead to the courts to dismiss cases related to events in a distant past on grounds of abuse of authority. However, many contemporary common law systems, including the U.S. legal system, have introduced time-bars for civil action and less serious criminal offenses through statutes of limitations. In common law countries, the issue of time-bars therefore generally becomes relevant only in relation to reparation claims linked to human rights crimes.
This Article will proceed by first setting out the moral case why human rights crimes should be imprescriptible, i.e., not subject to any statute of limitations (Section I), before discussing the law as it stands. Regarding the latter, I conclude that the imprescriptibility of criminal action in cases involving one of the three core international crimes has only recently emerged as a principle of customary international law (Section II). For other human rights crimes, the imprescriptibility principle follows from certain treaty obligations and is also emerging as a principle of customary international law (Section III).
Section IV discusses the relationship between the imprescriptibility principle and the prohibition of the retroactive application of criminal offenses under international law. Chapter V sets out the two doctrines under international law that may lead to the suspension or delayed beginning of a statute of limitations; the "continuous crime" doctrine and the principle of "no prescription without effective recourse."
Largely unexplored is the question of whether reparation claims based on human rights crimes are also imprescriptible. In Chapter VI, I argue that the right to an effective remedy under international treaty law renders reparation claims based on genocide, crimes against humanity, and war crimes imprescriptible. However, state practice does not follow this approach, which has so far prevented the emergence of a norm of customary international law to that effect.
THE MORAL CASE FOR MAKING HUMAN RIGHTS CRIMES IMPRESCRIPTIBLE
If one regards the law as it should be (lex ferenda), in the balance of relevant moral considerations, human rights crimes ought to be imprescriptible, both in terms of prosecutions and reparation claims. In assessing the morality of statutory limitations for human rights crimes, the starting point has to be that those who have committed such heinous crimes deserve to be punished, and those who suffered merit reparation. Statutory limitations constrain legitimate claims to rectify an injustice and can therefore be "morally justified only if we have good reasons for accepting this constraint." (8) Morally speaking, the burden of proof rests therefore on those making the case for the prescriptibility of human rights crimes.
Reasons of procedural justice have mainly been put forward to explain why the passage of time should bar courts from dealing with criminal or civil claims that are...