Acta Universitatis Danubius. Juridica, Vol 11, No 3 (2015)
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Considerations regarding the Non-Applicability of Statutory Limitations to Genocide, Crimes against Humanity and War Crimes |
Bogdan BÎRZU1
Abstract: In this paper are analyzed the genocide, the crimes against humanity and war crimes from the perspective of humanitarian law, in order to highlight the relevant aspects regarding the non-applicability of statutory limitations to these crimes.To obtain some efficient legal instruments of protecting human rights and fundamental freedoms, and preventing genocide, crimes against humanity and war crimes, United Nations has established in the international law the "principle of non-applicability of statutory limitations to war crimes and crimes against humanity". A brief analysis is made on legislative acts adopted at European level which regulate the institution of the imprescriptibility of the aforementioned crimes, such as The Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which was ratified by Romania by Decree no. 547/1969 (B. Of. No. 83 of 30 July 1969). The Convention contains references regarding the statute of limitations for criminal liability and enforcement of sentences. The analysis of the Convention is intended to highlight the importance of this European legislative act, since it was the first legal instrument of the international community, through which it was possible to ensure the protection of rights and fundamental freedoms beyond the sovereignty of states, thus representing a success and an innovation in international law.
Keywords: human rights, convention, international crime, imprescriptibility
1. Introduction
In a democratic state, the extent and intensity of criminal repression must be first and foremost determined by reference to social value importance and must satisfy the requirements resulted from the principles of fundamental human rights. By the criminalization of offences against humanity, war and genocide, the international community fulfills a fundamental desideratum, namely protecting the most important human values such as ensuring security of groups and maintaining the peace at national and global level.
The research and analysis of genocide, crimes against humanity and war crimes would be unsubstantially without referring to the rules of international humanitarian law as part of the international law of human rights, since the former regulates concretely and practically the concept of protection during armed conflicts. It is important also to refer to the rules of international criminal law which, although it is relatively a recent discipline, materialized after the Second World War (Glaser, 1970, p. 17, 26), brings clear rules and regulations in relation to offences against humanity.
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. International humanitarian law protects those who are not or no longer participating in hostilities and restricts the means and methods of warfare.
Throughout time, the rules regarding the law of armed conflict have referred especially to issues concerning the protection of the victims of armed conflicts and the protection of cultural property in case of producing an armed conflict, the international humanitarian law being also known as the law of war or law of armed conflicts.
International humanitarian law is part of international law and is applicable to armed conflicts, being regulated especially by the Geneva Conventions of 1949, supplemented by two Additional Protocols thereto of 1977, concerning the protection of victims of armed conflicts, plus an important number of conventions which regulates specific segments of international humanitarian law, as well as rules of customary law and related principles2.
It is worth mentioning that the issue of war, the way in which armed conflicts are managed, was approached even since antiquity and continued to be reflected in the work of various jurists (Hugo Grotius, The law of war and peace) in the documents of international nature (Saint Petersburg Declaration of 1868, the first international document which sets limits for the use of certain types of weapons), the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949, which sought the establishment of an international tribunal necessary to avoid war (Ramcharan, 1993, pp. 26-49), as well as in the efforts attempted by states internally and internationally for handling the issues of international humanitarian law and cooperation in this field.
The latter has materialized into the establishment of national committees on international humanitarian law and cooperation between these bodies and the International Committee of the Red Cross3.
2. Aspects Regarding the Non-Applicability of Statutory Limitations to Crimes against Humanity in International Law
In order to ensure efficient legal instruments to protect human rights and fundamental freedoms and, alternatively, to prevent genocide, crimes against humanity and war crimes, United Nations has established in international law, "the principle of non-applicability of statutory limitations to war crimes and crimes against humanity".
In this context, the United Nations, for the purpose of universal application of this principle, adopted on 26 November 1968 through Resolution no. 2391 The Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.
This approach is a result of finding by the United Nations that the enforcement of rules of national law of each State, regarding the prescription in the case of genocide and crimes against humanity would impede the prosecution and punishment of those responsible.
The Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity has been ratified by Romania by Decree no. 547/1969 (B. Of. No. 83 of 30 July 1969) and refers to statute of limitations for criminal liability and enforcement of sentences.
According to the main provisions of the Convention, the war crimes and crimes against humanity are imprescriptible, irrespective of the date on which the offences were committed, as they are defined in The Charter of the International Military Tribunal (Nuremberg Charter) of 1945, and particularly serious crimes listed in the Geneva Conventions of 12 August 1949 for the protection of war victims (according to these documents, war crimes include murder, torture, deportation to slave labor or for other purposes of the civilian population, killing or torturing prisoners of war, robbery, destruction without reason of cities, towns or villages and devastation not justified by military necessity; are considered crimes against humanity: murder, extermination, enslavement, banishment, cruelty to peaceful population, persecutions) genocide and inhuman acts resulting from apartheid.
The provisions of the Convention applies to both private individuals who participate, as perpetrators or accomplices in such crimes, who provoke or plan to commit them, and to state representatives who participate in or tolerate the commission of such crimes.
The States Parties undertake to adopt legislative or other measures to ensure order and the non-applicability of statutory limitations to crimes mentioned as well as the extradition, according to the rules of international law, of the persons who are guilty of committing them.
Romania supported the idea of non-applicability of statutory limitations to war crimes and crimes against humanity and approved the adoption of this Convention, which establishes internationally principles contained in our legislation: article 121 of the Criminal Code of Romania of 1969 provides that "prescription does not remove criminal liability for crimes against peace and humanity".
According to its provisions, the Convention is open to participation of UN States Members, specialized institutions, States Parties to the Statute of the International Court of Justice and those who are invited for this purpose by the UN General Assembly. This clause however is contrary to the principle of universality of multilateral international treaties whose object and purpose are interested in the international community as a whole, making it impossible the participation at the convention of several socialist countries which are not members of the United Nations or of specialized institutions.
In the new criminal legislation, the imprescriptibility of genocide, crimes against humanity and war crimes, irrespective of the date on which the offences were committed, is referred to in Article 153, in full compliance with the Convention, which in Article 1 states: “Irrespective of the date on which the offences were committed, the following crimes are imprescriptible:
a) war crimes, as defined in The Charter of the International Military Tribunal (Nuremberg Charter) August 8, 1945 and confirmed by resolutions of The United Nations General Assembly 3 (I) and 95 (I) of February 13, 1946 and December 11, 1946 and particularly the "serious crimes" enumerated in The Geneva Conventions 1949 for the protection of war victims;
b) crimes against humanity, even if they were committed in time of war or in peacetime, as defined in The Charter of the International Military Tribunal of 1945 and confirmed by resolutions of The United Nations General Assembly 3 (I) and 95 (I) of February 13, 1946 and December 11, 1946, the eviction by armed attack or occupation and inhuman acts resulting from apartheid and genocide, as defined in The Convention on the Prevention and Punishment of the Crime of Genocide of 1948, even if such acts do not constitute a violation of the national law of the country in which they were committed."
The Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity also contributes in concrete terms at defining the active subject of the regulated offences, thus making a decisive legal instrument regarding the development and support of various theses and theories according to which the active subject must or must not have a special quality, as follows: "If any of the crimes mentioned in Article I are committed, the provisions of this Convention shall be applied to State representatives and private individuals who participate in committing the offence as perpetrators or accomplices, who are responsible for direct incitement to commit any of these crimes, or are participating in direct planning of committing the crime, irrespective of the degree of its execution, as well as the state representatives who tolerate the commission of this offence.”
At the same time, the Convention includes rules and regulations regarding international judicial cooperation in criminal matter, with particular focus on the institution of extradition of persons responsible for genocide and crimes against humanity, as follows: “The States Parties to this Convention undertake to adopt all necessary domestic, legislative or other measures that would be needed to allow extradition, in accordance with international law, of persons referred to in Article II of this Convention”.
The provisions related to the dual character of the non-applicability of statutory limitations subject of this analysis, regarding the criminal liability and enforcement of sentences for committing these crimes, are covered by Article IV of the Convention: “The States Parties to this Convention undertake to adopt, in accordance with their constitutional procedures, any legislative or other measures that may be necessary to ensure the non-applicability of statutory limitations to crimes referred to in Articles I and II of this Convention, both in terms of prosecution and punishment; where there is a prescription under the law or else, it will be abolished.”
After the adoption and ratification of The Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1973, the United Nations considered that it was necessary to intensify international efforts regarding the criminal liability of persons who had committed such crimes. In this context, the General Assembly adopted and proclaimed the new principles of international cooperation regarding the identification, arrest, extradition and punishment of individuals guilty for war crimes and crimes against humanity.
These international legal instruments are aimed primarily at putting in practice the desire expressed by the majority of world states, to not let unsanctioned persons guilty of committing crimes against humanity and genocide, having as basis the experience of the World War II (1939-1945).
The principles of international cooperation regarding the identification, arrest, extradition and punishment of individuals guilty of war crimes and crimes against humanity are part of a document adopted by the United Nations General Assembly on December 3, 1973 by Resolution no. 3074 / XXVIII.
Considering these aspects, it is worth mentioning that the United Nations General Assembly proclaimed the following principles of international cooperation with a relevance in the matter above-mentioned:
war crimes and crimes against humanity, irrespective of where or when they were committed, must be investigated and the individuals against whom there is evidence that have committed such crimes should be investigated, arrested and brought to justice and, if they are found guilty, punished according the law;
any state has the right to judge their own nationals for such crimes;
states shall cooperate on a bilateral and multilateral basis in order to cease and prevent war crimes and crimes against humanity and for this purpose they should take the necessary national and international measures;
states shall grant each other the contest in order to identify, arrest and judge the individuals suspected of having committed such crimes;
individuals against whom there is evidence of having committed war crimes and crimes against humanity must be brought to justice and if found guilty, punished, generally, in the countries where the crimes were committed;
states shall cooperate in order to collect information and documents to facilitate the prosecution of perpetrators;
states shall not grant asylum to individuals against whom exist reasonable suspicions that they committed a crime against peace, a war crime or a crime against humanity;
states shall not take any legislative or other measure that might prejudice their international obligations, regarding the identification, arrest, extradition and punishment of individuals guilty of war crimes and crimes against humanity.
The principle of statute of limitations for criminal liability has also been established in the European Convention of 1974 regarding the non-applicability of statutory limitations to war crimes and crimes against humanity4 which in art. 2 para. 2 provide that "it shall apply to offences committed before its entry into force, in the cases in which the limitation period has not expired until that date".
The statute of limitations for international criminal liability was also established by the resolutions of the UN Economic and Social Council no. 1074 and no. 1158 of July 28, 1965 and August 5, 1966 regarding the punishment of war criminals and persons guilty of crimes against humanity.
The statutes of ad hoc international tribunals do not provide this important principle, being considered5 that the tacit attitude of States Parties is equivalent to applying the rules regarding the non-applicability of statutory limitations to crimes against humanity and genocide.
3. Conclusions
The new dimensions and perspectives of the concept of international security is in direct correlation with the severity of consequences resulting from committing genocide and crimes against humanity, context in which all state actors must rethink and adapt the legal instruments applicable in the matter of preventing and sanctioning these special criminal phenomena. After achieving this absolutely necessary desideratum, it is required to continue the policy of preventing these types of crimes through the establishment, development and application of some international mechanisms, because without a real cooperation in terms of prosecution and punishment of persons guilty of committing these abominations, will not be possible the implementation of judicial process in this matter.
It should be mentioned that an effective international cooperation cannot be made in the absence of compliance and adjustment of national legislation with international provisions of statues which regulate the prevention and repression of genocide and crimes against humanity.
The specific activities of preventing genocide and crimes against humanity, as social, political, and economical, and especially those of strengthening the mechanisms of protection of human groups that represent ethnic minorities, directly constitute a form of prevention of armed conflict, including a new world conflagration, for which it is required a precise application of legal norms under international legislation of humanitarian law.
The amplification and escalation of internal conflicts which initially were directed to defined groups of people within the borders of a state, can have some concrete implications on a medium and long term regarding a gradual outbreak of another world war. This verdict was given by specialists who have predicted that another third world war was getting closer, due to outbreaks of crisis all over the world which have intensified in recent years.
Reflecting on the subject discussed in this paper, it should be noted that the European Court of Human Rights has decided that the applicability of statutory limitations to those crimes of international nature does not represent a violation of the Universal Declaration of Human Rights and Fundamental Freedoms.
In this context, we consider that the punishment of war criminals, of those responsible for acts of genocide or crimes against humanity is, in fact, a true guarantee of protection of human rights and an effective form of prevention of such atrocities.
4. References
Glaser, Ș. (1970). Droit international pénal conventionnel, Bruxelles.
Prime Minister's Decision no. 298/2007 published in the Official Gazette of Romania, Part I, no. 871 of December 20, 2007.
Ramcharan, B. G. (1993). Security Council Patterns for Dealing with Ethnic Conflicts and Minority Problems, in the book Donna Gomien, Broadening the Frontiers of Human Rights, Oslo-Oxford, Scandinavian University Press – Oxford University Press.
European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes. Strasbourg, 25 January 1974.
Schabas, W.A. In Comemory on the Rome Statute of the International Criminal Court, Observes’s Notes, Nomos Verlagsgeselschaft, Baden Baden.
Military Balance (2006). Raport of Strategic Studies Institute, Londra, May.
1 PhD in progress, Titu Maiorescu University, Bucharest, Romania. Address: Calea Văcăreşti nr.187, Sector 4, 004051, Bucureşti, Romania, Tel: 021.316.16.46, Fax: 021.311.22 97 - 021.316.16.46. Corresponding author: birzu_bogdan@yahoo.com.
AUDJ, vol. 11, no. 3/2015, pp. 96-105
2 Romania's national strategy of implementation the international humanitarian law, approved by the Prime Minister's Decision no. 298/2007 published in the Official Gazette of Romania, Part I, no. 871 of December 20, 2007. The Strategy has a preamble containing a definition of international humanitarian law, references to major international instruments of international humanitarian law, particularly the Geneva Conventions of 1949 and the Additional Protocols thereto of 1977, the legal basis of the Strategy, elements of tradition of Romania international humanitarian law, an annex which includes the main instruments of international humanitarian law. The strategy includes also the general objectives and targets required to implement international humanitarian law internally, the participation and involvement of Romania internationally, when appropriate, in different events of international humanitarian law, measures for achieving them by promoting and applying the rules of international humanitarian law, the adoption of legislative ratification of the conventions of international humanitarian law, as appropriate, to which Romania is not part of, of dissemination and cognition of rules of international humanitarian law in the armed forces and other structures with responsibilities in this field and in civil society. Objectives and measures for achieving them can contribute externally to an increase of visibility of actions undertaken by Romania in the field of international humanitarian law. The strategy constitutes a reference document in the field, being translated into English and distributed within some specific bodies in the country and abroad. However, the strategy was presented at some international meetings (COJUR International law working group meeting of February, 28 2008) being received with interest.
3 According to the official position of the Ministry of Foreign Affairs, regarding Romania, actions were taken internally which intended to reflect the concerns of the Romanian state to promote, disseminate relevant rules of international humanitarian law. In this regard, we mention the following treaties of international humanitarian law to which Romania is a part of, and other relevant legal instruments: Convention (III) relative to the Opening of Hostilities. The Hague, 18 October 1907; Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907; Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925; Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977; Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, The Hague 1954; Protocol to the Convention for the Protection of Cultural Property in the Event of Armed conflict, The Hague 1954; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. Opened for Signature at London, Moscow and Washington. 10 April 1972. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Geneva, 10 October 1980; Protocol on Non-Detectable Fragments (Protocol I). Geneva, 10 October 1980; Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. Geneva, 10 October 1980; Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III). Geneva, 10 October 1980; Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention), 13 October 1995; Protocol on Explosive Remnants of War (Protocol V to the 1980 CCW Convention), 28 November 2003; Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction, Paris 13 January 1993; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997; Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May 1993; Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994; Rome Statute of the International Criminal Court, 17 July 1998.
4 Romania adhered to the European Convention, signed in Strasbourg on January 25, 1974 by Law no. 68/2000 approving the Government Ordinance no. 91/1999.
5 W. A. Schabas, în Comemory on the Rome Statute of the International Criminal Court, Observes’s Notes, Nomos Verlagsgeselschaft, Baden Baden, p. 253 and next.
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