Justice delayed, not denied: statutory limitations and human rights crimes.

Author:Hessbruegge, Jan Arno

    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.

    1. 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)

    2. 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)

    3. 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...

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