Statutory limitations (also known as prescriptions or prescriptibility) bar state authorities from investigating and prosecuting a crime after a certain length of time. These limitations are based, in part, on the premise that a fair trial becomes increasingly difficult as time passes following the alleged act. Evidence may be lost or destroyed, memories may become faulty, and proof that might otherwise support a valid defense may become inaccessible. After a certain amount of time has passed, the risk of irremediable harm to the rights of the accused is seen to outweigh the state's interest in prosecuting a crime. Thus, statutory limitations require prosecutors either to start proceedings within a set time or to free a potential accused from the threat of prosecution.
Statutes of limitations are frequently found in civil law or continental legal systems. In common law countries a long delay is more likely to lead to questions about abuse of process, the right to be tried within a reasonable time, or the public interest in addressing a matter long after the suspected crime took place. When limitations exist, exceptions or extensions are increasingly recognized for certain crimes (e.g., the sexual abuse of children, where for various reasons the crime may be reported only many years later). The nature of the crime and the state's interest in its punishment are seen to strike a different balance with respect to the fair trial concerns that underlie the principle of prescription.
The same concerns arise with genocide and crimes against humanity. The high-profile trials at Nuremberg and subsequent proceedings following World War II did not lead to the widespread prosecution that some sought of the many suspected Nazi and other war criminals who lived either openly or in hiding around the world. In addition, neither the founding instruments of the military tribunals that sat at Nuremberg and Tokyo, the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide, nor the four Geneva Conventions of 1949 mentioned statutory limitations (one exception is Control Council Law No. 10, which adapted the norms of the Nuremberg Charter for use by the Allies' military courts in Europe, and which made clear that statutes of limitations were suspended for the entire period of Nazi rule, 1933–1945). As time passed, concerns arose that statutory limitations might forever block the possibility of holding the perpetrators of World War II's crimes accountable. Israel's prosecution of Nazi functionary Adolf Eichmann in 1961 focused international attention on the problem of the unredressed crimes of World War II and gave impetus to efforts to ensure that prescription would not bar later prosecutions.
In response, the UN General Assembly on November 26, 1968, adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which specifically included genocide within the definition of crimes against humanity, and entered into force on November 11, 1970. It declares that "[n]o statutory limitation shall apply [to these crimes] . . . irrespective of the date of their commission" (Article 1). States ratifying the Convention "undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to. . . and that, where they exist, such limitations shall be abolished" (Article 4). The Convention's preamble expresses the conviction that the potential application of statutory limitations to these crimes is "a matter of serious concern to world public opinion" and that their effective punishment "is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms . . . and the promotion of international peace and security."
The words "irrespective of the date of their commission" in Article 1 make clear the potential for retroactive application of the 1968 Convention to crimes taking place before its ratification. This has been controversial and is part of the reason that states have been slow to adhere to the Convention (Argentina became the forty-eighth state party in August 2003). Some states have filed declarations upon ratification, stating that the Convention applies only with respect to crimes committed after its entry into force for their country (e.g., Mexico and Peru). Moreover, concern about the retroactive abolition of limitation periods led the Council of Europe (CoE) to adopt an otherwise almost identical regional instrument, the 1974 European Convention on the Non-Application of Statutory Limitations to Crimes Against Humanity and War Crimes, which declares in Article 2 that it applies only to offenses committed after its entry into force or to those that, if committed previously, have not yet been prescribed by statutory limitations. Similarly, the 1994 Inter-American Convention on Forced Disappearance of Persons, in Article 8, affirms the imprescriptibility of forced disappearance, but only provided that there is no "norm of fundamental character preventing application" of this principle. When such a fundamental norm exists, prescription is allowed, provided that any limitation period is "equal to that which applies to the gravest crime in the domestic laws of the corresponding State Party."
Such concerns with retrospectivity are not universal, however, and other states have deliberately embraced this dimension of the 1968 Convention in support of their countries' reckoning with past undemocratic regimes. Hungary's Constitutional Court, for example, in 1993 upheld a law revoking statutes of limitations with respect to crimes against humanity committed in the suppression of the 1956 uprising, and Argentina in 2003 approved and constitutionally incorporated the 1968 Convention even as it annulled two laws that provided amnesties in relation to the military dictatorship that ruled from 1976 to 1983. In addition, the norm of imprescriptibility has gained support beyond the confines of state parties, if sometimes imperfectly. For example, the Court of Cassation in France, notably through its 1984 and 1985 decisions in the case against Klaus Barbie, has affirmed that, in accordance with a 1964 French law, crimes against humanity cannot be subject to statutory limitations, although (and contrary to the 1968 Convention) war crimes can.
With the end of the cold war and the beginning of the 1990s, the movement for international justice gained momentum with the establishment of the International Criminal Tribunals for the Former Yugoslavia (ICTY, 1993) as well as Rwanda (ICTR, 1994), and renewed work toward a permanent International Criminal Court (ICC). In addition, the International Law Commission's Draft Code of Crimes Against the Peace and Security of Mankind, in its 1991 version, states that "[n]o statutory limitation shall apply to crimes against the peace and security of mankind" (Article 7). The principle was omitted from the much abbreviated 1996 Draft Code (which was not approved by the General Assembly), apparently out of concern that the nonapplicability of statutory limitations was a principle which could be applied only to the "core crimes" (such as genocide and crimes against humanity) but not all international crimes.
The crowning achievement in the development of international criminal law during the 1990s was the 1998 adoption of the Rome Statute of the International Criminal Court. In Article 29 the Rome Statute declares that "the crimes within the jurisdiction of the Court shall not be subject to any statutes of limitations." Thus, any statutory limitations in national law will have no bearing on the ICC's investigation and prosecution of genocide, crimes against humanity, and war crimes (as well as the crime of aggression, should a definition ever be adopted). States that ratify the Rome Statute are obliged to cooperate with the Court, including the arrest and transfer of suspects sought by it. Given the clear wording of Article 29, this should mean regardless of whether a statutory limitation has expired under national law. Of course, the principle of complementarity underlying the Rome Statute ensures that governments will always have the right to investigate and prosecute these crimes first. Moreover, it can be expected that in most or all cases the ICC will investigate and, where appropriate, prosecute crimes before any statute of limitations applicable at the national level expires. In principle, however, if such limitations do obstruct domestic prosecution, the ICC will be able to act, provided of course that other criteria of its jurisdiction are met (including that the crime occurred after the entry into force of the Statute). Thus, if governments wish to prevent the ICC from acting on their behalf in such circumstances, they have a further incentive to eliminate any statutory limitations applicable to crimes covered by the Rome Statute.
Taken together with the 1968 Convention, other international instruments, case law, and national legislative measures, the ICC Statute reinforces the progressive movement of customary international law toward the imprescriptibility of the core crimes and, in particular, of genocide and crimes against humanity.
Kritz, Neil J., ed. (1995). Transitional Justice: How Emerging Democracies Reckon with Former Regimes. 3 vols. Washington, D.C.: United States Institute of Peace.
Schabas, William A. (1999). "Commentary on Article 29." In Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, ed. Otto Triffterer. Baden-Baden: Nomos.
United Nations General Assembly (1968). Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Adopted by Resolution 2391 (XXIII). United Nations Treaty Series.
Van den Wyngaert, Christine and John Dugard (2002). "Non-Applicability of Statute of Limitations." In The Rome Statute of the International Criminal Court: A Commentary, ed. Antonio Cassese, Paola Gaeta, and John R. W. D. Jones, 2 volumes. Oxford: Oxford University Press.