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Nonapplicability of Statutory Limitations
In international law, certain crimes are not subject to any statute of limitation. This means that, no matter how much time has lapsed, judicial proceedings can still be initiated against the perpetrators of these crimes. The specific non-applicability of statutory limitations to war crimes has become a norm of customary law (Rule 160 of the 2005 ICRC customary IHL study).
This differs from certain domestic legal systems—in particular, civil law ones—that do have statutory limitations for some or all crimes. The limitation periods may vary from one year to thirty, depending on the gravity of the crime. Most domestic laws provide for this form of “prescription” for misdemeanors (usually defined as crimes punishable by one year in prison or less) and infractions (usually punishable only by fines; also known as summary or non-arrestable offenses in the United Kingdom). Thus, criminal law sets a time limit, which varies for different categories of crimes, after which all legal actions are stopped and judicial proceedings are no longer possible.
Common law systems usually do not establish a statute of limitations for serious felonies such as murder, while civil law systems apply extended limits for such felonies—more than twenty years.
In the international arena, the non-applicability of statutory limitations pertains to crimes that are extremely difficult to prosecute immediately after they were committed. This is particularly true of war crimes, crimes against humanity, or genocide. Given the context in which such crimes tend to be carried out, it is often necessary to wait for a change in the situation—an end to the conflict or a change in regime—for it to become possible, in practice, to initiate judicial proceedings. The non-applicability of statutory limitations prevents the most serious crimes, and those most difficult to prosecute, from going unpunished.
An international Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity was adopted by the General Assembly of the UN on 26 November 1968 (GA Resolution 2391 [XXIII]). It entered into force on 11 November 1970 and currently has fifty-five States Parties.
It precisely defines the crimes to which statutory limitations are not applicable. These are war crimes and crimes against humanity, as defined in the charter of the Nuremberg Tribunal, as well as grave breaches of humanitarian law, as defined by the 1949 Geneva Conventions.
There is also a European Convention on the Non-applicability of Statutory Limitations to Crimes against Humanity and War Crimes, adopted on 25 January 1974 and entered into force on 27 June 2003. It has currently eight States Parties: Belgium, Bosnia and Herzegovina, Malta, Montenegro, the Netherlands, Romania, Serbia, and Ukraine.
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
- War crimes as they are defined in the Charter of the International Military Tribunal, Nuremberg, of 8 August 1945 and confirmed by resolutions 3(1) of 13 February 1946 and 95(1) of 11 December 1946 of the General Assembly of the UN, particularly the “grave breaches” enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
- Crimes against humanity, whether committed in time of war or in time of peace, as they are defined in the Charter of the International Military Tribunal, Nuremberg, of 8 August 1945 and confirmed by resolutions 3(1) of 13 February 1946 and 95(1) of 11 December 1946 of the General Assembly of the UN, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed. (Art. 1 of the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity)
To ensure the effectiveness of the Convention, the States Parties undertake to incorporate into their domestic legislation such laws and other necessary measures as will enable the extradition of persons accused of these crimes, in accordance with their respective constitutional processes.
They also undertake to adapt their laws so as to ensure that statutory or other limitations shall not apply to the prosecution and punishment of these crimes. If such limitations exist, they are to be abolished (Arts. 3, 4).
In matters of criminal law, despite the existence of international conventions, most prosecutions take place before domestic courts, using national criminal legislation. It is therefore crucial that states bring their domestic laws into conformity with the relevant international conventions and that they refrain from hindering any proceedings undertaken by national courts with regard to these crimes.
If the domestic laws of a country are not in conformity with its obligations under an international convention, it is possible to:
- refer the situation to the domestic institution that is responsible for monitoring the legality or constitutionality of legislation (usually a specific court); and
- alert the authority with which the relevant convention is deposited (e.g., the UN, ICRC, EU, OAS, OAU).
The Statute of the International Criminal Court, adopted in July 1998 in Rome, reaffirms the non-applicability of statutory limitations to the crimes under its jurisdiction (Art. 29 of ICC Statute)—namely, genocide, crimes against humanity, and war crimes. It entered into force on 1 July 2002.
For Additional Information: Meron, Theodor. “The Humanization of Humanitarian Law.” American Journal of International Law 94 (April 2000): 239–78.
Zalaquett, José. “Moral Reconstruction in the Wake of Human Rights Violations and War Crimes.” In Hard Choices: Moral Dilemmas in Humanitarian Intervention , edited by Jonathan Moore, 211–28. Lanham, MD: Rowman & Littlefield, 1998.