Practice Relating to Rule 160. Statutes of Limitation
In its judgment in the Videla case in 1994 concerning the abduction, torture and murder of a Chilean woman in 1974, Chile’s Appeal Court of Santiago held that the acts charged constituted grave breaches under Article 147 of the 1949 Geneva Convention IV, which it found applicable, and that:
Such offences as constitute grave breaches of the Convention are imprescriptible … the ten-year prescription of legal action in respect of the crimes provided for in Article 94 of the Penal Code cannot apply … Any attempt by a State to tamper with the criminality of and consequent liability for acts which infringe the laws of war and the rights of persons in wartime is beyond the State’s competence while it is a Party to the Geneva Conventions on humanitarian law.
In its judgment in the María Barros Perelman case in 2005, Chile’s Court of Appeal of Santiago stated:
[T]the non-applicability of statutory limitations to crimes against humanity stems … from a specific category of norms of general international law (“ius cogens”). [This non-applicability of statutory limitations] is consistent with international legal doctrine and international treaties and has been accepted in the judicial practice of national tribunals of United Nations member states and of international tribunals with jurisdiction over crimes against humanity.
The Court also stressed “the binding nature of ‘ius cogens’ or general principles of international law concerning the non-applicability of statutory limitations to crimes against humanity, as clearly and expressly recognized by … the 1949 Geneva Conventions”.
The Court concluded:
[T]he prohibition of criminal action under domestic law with respect to crimes against humanity is null and void because the non-applicability of statutory limitations to crimes against humanity is an imperative norm of general international law, which has … been incorporated into constitutional law by way of international treaties and [prior to this incorporation] was binding as a general principle of international human rights law.
In its decision on annulment in the Víctor Raúl Pinto case
in 2007, Chile’s Supreme Court stated that “among the characteristics that distinguish … [war crimes], the most notable include the non-applicability of statutes of limitation”.
In 1968, during a debate in the Third Committee of the UN General Assembly on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the representative of Chile stated:
His country had voted in favour of the draft convention [on the non-applicability of statutory limitations to war crimes and crimes against humanity] because it considered it essential to adopt an instrument establishing the non-applicability of statutory limitations to war crimes and crimes against humanity.