Rule 160. Statutes of limitation may not apply to war crimes.
State practice establishes this rule as a norm of customary international law applicable in relation to war crimes committed in both international and non-international armed conflicts.
The non-applicability of statutory limitations to war crimes and crimes against humanity is provided for by the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity and by the 1974 European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes.[1] In the discussions leading to the adoption of the UN Convention, some States considered the prohibition of statutes of limitation for war crimes to be a new rule,[2] while other States considered that it was already established.[3] The main objection of the States which considered it a new rule was that the Convention would apply retroactively and thus violate the principle of non-retroactivity of criminal law and that statutory limitation was a general principle of their domestic criminal law at that time.[4] But many States argued that war crimes were of an exceptional character and should not, therefore, be subject to the ordinary regime of criminal law and to the operation of statutes of limitation and/or that they had already implemented the principle of non-applicability of statutory limitations to war crimes.[5]
Between 1969 and 1973, the UN General Assembly adopted several resolutions calling on States to ratify the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity and, in 1970, welcoming its entry into force.[6] These resolutions attracted substantial abstentions and a few negative votes. During the debates on these resolutions, States’ main concern was the lack of clarity regarding the definitions of war crimes and crimes against humanity as used in the Convention.[7]
The recent trend to pursue war crimes more vigorously in national and international criminal courts and tribunals, as well as the growing body of legislation giving jurisdiction over war crimes without time-limits, has hardened the existing treaty rules prohibiting statutes of limitation for war crimes into customary law. In addition, the operation of statutory limitations could prevent the investigation of war crimes and the prosecution of the suspects and would constitute a violation of the obligation to do so (see Rule 158).
The Statute of the International Criminal Court provides that the crimes within the jurisdiction of the Court are not subject to any statute of limitation, and this provision was not a matter of controversy, in part because the International Criminal Court only has jurisdiction in relation to acts committed after the Statute enters into force for the State concerned.[8] UNTAET Regulation No. 2000/15 for East Timor also states that war crimes may not be subject to any statute of limitation.[9]
The principle that statutes of limitation do not apply to war crimes is set forth in many military manuals and in the legislation of many States, including those of States not party to the UN or European Conventions on the Non-Applicability of Statutory Limitations to War Crimes or Crimes against Humanity.[10] There are also official statements to this effect. For example, in 1986, the United States wrote a note to Iraq (also not party to the UN Convention) to the effect that individuals guilty of war crimes could be subject to prosecution at any time, without regard to any statute of limitations.[11] In a letter to the UN Secretary-General in 1993, Yugoslavia stated that war crimes were not subject to statutes of limitation.[12] In 2000, upon signature of the Statute of the International Criminal Court, Egypt stated that it was a “well established principle that no war crime shall be barred from prosecution due to the statute of limitations”.[13] There is also case-law of States not party to the UN or European Conventions in which the courts concerned ruled that statutes of limitation do not apply to war crimes.[14] It is significant that several States that objected earlier to a prohibition of statutory limitations, or whose legislation was not clear on this point, have now ratified the Statute of the International Criminal Court or the UN Convention on Non-Applicability of Statutory Limitations thus recognizing the principle that statutes of limitation do not apply to war crimes.[15]
Ethiopia’s Constitution provides that statutes of limitation do not apply to crimes against humanity, without mentioning war crimes.[16] However, in the Mengistu and Others case in 1995, the Special Prosecutor of Ethiopia stated that “it is … a well established custom and belief that war crimes and crimes against humanity are not … barred by limitation”.[17] France’s Penal Code provides for the non-applicability of statutes of limitation for genocide and “other crimes against humanity”.[18] In the Barbie case in 1985, France’s Court of Cassation held that in contrast to crimes against humanity, war crimes committed during the Second World War were subject to the time-limits imposed by statute.[19] However, France was also a member of ECOSOC when Resolution 1158 (XLI) was adopted in 1966, which considered it desirable to affirm, in international law, “the principle that there is no period of limitation for war crimes and crimes against humanity” and which urged all States “to take any measures necessary to prevent the application of statutory limitations to war crimes and crimes against humanity”.[20] France subsequently supported the non-applicability of statutes of limitation to war crimes in a debate in the United Nations in 1967 leading to the adoption of the UN Convention on Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, and it signed the European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes.[21] In addition, France has ratified the Statute of the International Criminal Court.
Israel’s Nazis and Nazi Collaborators (Punishment) Law provides that there shall be no period of limitation for prosecution of war crimes, but this law only covers war crimes committed by Nazis in the Second World War.[22] However, Israel subsequently supported the general principle that statutes of limitation do not apply to any war crimes.[23] Some other States have similarly vested jurisdiction in their courts over war crimes committed during the Second World War,[24] but these States also support the general principle that statutes of limitation may not apply to any war crimes.[25] There have also been some recent convictions for war crimes committed during the Second World War.[26] Insufficient evidence may often amount to an obstacle to successful prosecution of war crimes that took place several decades before proceedings were instituted. Such practical considerations do not undermine the principle that statutes of limitation are not applicable to war crimes.
[1] UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, preamble (cited in Vol. II, Ch. 44, § 763) and Article 1 (ibid., § 764) (the UN Convention has been ratified by 48 States); European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, Article 1 (ibid., § 765) and Article 2 (ibid., § 766) (the European Convention has been ratified by 3 States).
[2] See, e.g., the statements of Brazil (ibid., § 836) and Greece (ibid., § 845); see also the statements of Belgium (ibid., § 834), Cyprus (ibid., § 841), Honduras (ibid., § 846), India (ibid., § 848), Norway (ibid., § 851) and Sweden (ibid., § 855).
[3] See, e.g., the statements of Bulgaria (ibid., § 837) and Czechoslovakia (ibid., § 842).
[4] See the statements of Brazil (ibid., § 836), Cyprus (ibid., § 841), Greece (ibid., § 845), Honduras (ibid., § 846) and Sweden (ibid., § 855).
[5] See the statements of Bulgaria (ibid., § 837), Czechoslovakia (ibid., § 842), France (ibid., § 843), Hungary (ibid., § 847), India (ibid., § 848), Israel (ibid., § 849), Poland (ibid., § 853), Romania (ibid., § 854), Ukraine (ibid., § 856), USSR (ibid., § 857), United Kingdom (ibid., § 858), United States (ibid., § 860), Uruguay (ibid., § 862) and Yugoslavia (ibid., § 864).
[6] UN General Assembly, Res. 2583 (XXIV) (ibid., § 868), Res. 2712 (XXV) (ibid., § 869) and Res. 2840 (XXVI) (ibid., § 870).
[7] Only a few objections were raised with regard to the principle of the non-applicability of statutory limitations, which are similar to those expressed in the discussions leading to the adoption of the Convention (see footnotes 252–255 and accompanying text). Norway and Colombia announced that they would abstain in the vote on Res. 2583 because they objected to the principle as such owing to their domestic legislation (UN Doc. A/C.3/SR.1723, 3 December 1969, UN Doc. A/C.3/SR.1724, 3 December 1969 and UN Doc. A/C.3/SR.1725, 4 December 1969). France and Turkey also explained that they had to abstain for reasons related to their domestic legislation (UN Doc. A/C.3/SR.1724, 3 December 1969, §§ 36 and 60). Bolivia stated that it would abstain because “the non-applicability of statutory limitations was clearly abhorrent” and was “at variance with … the principles of non-retroactivity of penal law” (UN Doc. A/C.3/SR.1725, 4 December 1969, § 19).
[8] ICC Statute, Article 29 (cited in Vol. II, Ch. 44, § 767).
[9] UNTAET Regulation No. 2000/15, Section 17(1) (ibid., § 772).
[10] See, e.g., the military manuals of Australia (ibid., § 773), Italy (ibid., § 775) and United States (ibid., §§ 777–778); the legislation of Argentina (ibid., § 780), Belgium (ibid., § 786), Congo (ibid., § 789), Germany (ibid., § 797), Luxembourg (ibid., § 805), Mali (ibid., § 807), Niger (ibid., § 810), Switzerland (ibid., § 819), Tajikistan (ibid., § 820) and Uzbekistan (ibid., § 821); see also the draft legislation of Burundi (ibid., § 787), Jordan (ibid., § 802) and Lebanon (ibid., § 803).
[11] United States, Department of State, Diplomatic Note to Iraq (ibid., § 861).
[12] Yugoslavia, Deputy Prime Minister and Minister of Foreign Affairs, Letter to the UN Secretary-General (ibid., § 865).
[13] Egypt, Declarations made upon signature of the ICC Statute (ibid., § 768).
[14] See Chile, Appeal Court of Santiago, Videla case (ibid., § 827); Ethiopia, Special Prosecutor’s Office, Mengistu and Others case (ibid., § 828); Italy, Military Tribunal of Rome, Hass and Priebke case (ibid., § 832); Italy, Military Appeals Court, Hass and Priebke case (ibid., § 832); Italy, Supreme Court of Cassation, Hass and Priebke case (ibid., § 832).
[15] See the legislation of Austria (ibid., § 783), Colombia (ibid., § 788), Greece (ibid., § 878), Malaysia (ibid., § 806), Malta (ibid., § 878), Norway (ibid., § 878), Portugal (ibid., § 878), Spain (ibid., §§ 817–818), Sweden (ibid., § 878), Turkey (ibid., § 878) and Uruguay (ibid., § 862) and the statements of Brazil (ibid., § 836), Cyprus (ibid., § 841), Greece (ibid., § 845), Honduras (ibid., § 846) and Sweden (ibid., § 855). However, Austria, Brazil, Colombia, Cyprus, Greece, Honduras, Malta, Norway, Portugal, Spain, Sweden and Uruguay have in the meantime ratified the ICC Statute. Spain, in addition, amended its Penal Code to provide explicitly that statutory limitations do not apply to war crimes. Uruguay, in addition, ratified the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.
[16] Ethiopia, Constitution (ibid., § 794).
[17] Ethiopia, Special Prosecutor’s Office, Mengistu and Others case (ibid., § 828).
[18] France, Penal Code (ibid., § 795).
[19] France, Court of Cassation, Barbie case (ibid., § 829).
[20] ECOSOC, Res. 1158 (XLI) (adopted by 22 votes in favour, none against and 2 abstentions) (ibid., § 872).
[21] See the practice of France (ibid., §§ 765 and 843).
[22] Israel, Nazis and Nazi Collaborators (Punishment) Law (ibid., § 800).
[23] See the statement by Israel (ibid., § 849).
[24] See the legislation of Australia (ibid., § 392), China (ibid., § 409), Luxembourg (ibid., § 449), Russian Federation (ibid., §§ 812 and 479), United Kingdom (ibid., § 498) and United States (ibid., §§ 501–503).
[25] See the practice in support of this rule of Australia (ibid., § 773), Luxembourg (ibid., § 805), Russian Federation (ibid., §§ 813 and 857) and United States (ibid., §§ 777–778). No contrary practice was found with respect to China. The statement in the UK Military Manual that it is “open to two or more belligerents to agree in a peace treaty, or even in a general armistice, that no further war crimes trials will be instituted by them after a certain agreed date or as from the date of the treaty of the armistice” (ibid., § 776) can be interpreted as contrary practice but it dates from 1958, i.e., before the adoption of the UN and European Conventions on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, and the United Kingdom has now ratified the ICC Statute and thus recognizes that statutes of limitation do not apply to war crimes, at least not to those war crimes codified in the Statute.
[26] See, e.g., Australia, High Court, Polyukhovich case (ibid., § 515); Canada, High Court of Justice, Finta case (ibid., § 250); Canada, Supreme Court, Finta case (ibid., § 250); United States, Court of Appeals, Demjanjuk case (ibid., § 273).