Practice Relating to Rule 160. Statutes of Limitation
Argentina’s Law concerning the Imprescriptibility of War Crimes and Crimes against Humanity (1995) approved the 1968 UN Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes against Humanity.
Argentina’s Law on the Implementation of the 1998 ICC Statute (2006) states:
The prosecution and punishment of the crimes provided in articles 8, 9 and 10 of this law [genocide, crimes against humanity and war crimes], as well as of any other crimes that may eventually fall within the jurisdiction of the International Criminal Court, are not subject to statutes of limitation.
In the Bohne case
in 1966, Argentina’s Supreme Court of Justice found that in fact there had been no verification that prescription applied to penal action under the laws of the requesting State (Federal Republic of Germany), and that the decision in question remained unchanged even in the light of the argument put forward by the defence to the effect that prescription of penal action for the crimes attributed to the accused applied after 15 years because the case was one of participation in simple homicide. The accused had been requisitioned for widespread and systematic execution of mentally ill persons in 1939 and 1940.
In the Schwammberger case
in 1989, a magistrate of Argentina’s Cámara Federal de La Plata found the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity to be an indisputable factor in the non-applicability of statutory limitations to war crimes as a principle of international law, and despite the absence of ratification by Argentina, held that Argentina was bound by the principle according to Article 102 of its Constitution.
Similarly, another magistrate rejected the position that prescription was covered by Article 18 of the National Constitution.
The Attorney-General argued that in the case in question it must be verified whether penal action was not prescribed under the laws of the requesting State (Federal Republic of Germany) rather than the laws of Argentina.
Similarly, in 1990, the Supreme Court found that under German law there was no prescription.
In the Priebke case
in 1995 dealing with the question of the possible extradition of the accused to Italy for acts committed during the Second World War (Ardeatine caves massacre), Argentina’s Court of Appeal found that, under the terms of Argentine legislation, the charge of homicide was prescribed and therefore the extradition request should be rejected.
The Supreme Court revoked the decision of the Court of Appeal and allowed the extradition, stating that the fact that Priebke was required for trial in Italy established prima facie the crime of genocide “for killing 75 Jews out of 335 dead”. It added that “the classification of offences as crimes against humanity does not depend on whether the requesting or requested States agree with the extradition process, but instead on the principles of jus cogens of international law” and that “there is no prescription for crimes under this law”.
One of the Court magistrates referred to the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity and concluded that the Argentine Republic’s practice undeniably contributed to the development of an international custom that favoured the non-applicability of statutory limitations, and that express acceptance of such non-applicability through adherence to or ratification of the Convention was not the only means of determining the existence of jus cogens. In his opinion, Argentina’s Executive and Legislative Branches had already expressed their agreement with the contents of the text, which had already been approved by both the Argentine Senate and House of Deputies.
Other magistrates also found that Priebke’s conduct had all the characteristics of crimes against humanity committed against civilians and prisoners of war in wartime, and that this classification was in line with the principles of jus cogens, and that such crimes were not subject to limitations.
However, other judges casting dissenting votes found that, since the crimes were homicides in terms of Article 62 of the Argentine Penal Code, the time limit after which prescription would apply had already elapsed. They found that even if the acts were to be considered crimes against humanity, they would be subject to a period of limitation since the UN Convention had yet to enter into force in Argentina.
In view of the above settled position and in the absence of statutory limitation, only the delayed prosecution does not preclude prosecutorial action to adjudicate the culpability of the perpetrators of core international crimes. It requires strong public and political will together with favourable and stable political situation for holding such trial. Therefore, justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought on the process of justice.