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AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 12-13, 2013
RESOLUTION
RESOLVED, That the American Bar Association urges all countries, consistent with
international law, not to apply statutes of limitation with respect to (1) genocide, (2) crimes
against humanity, and (3) serious war crimes.
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REPORT
“Moral duties have no term.”—Robert Kennedy1
Francois Duvalier (“Papa Doc”) and his son, Jean Claude Duvalier (“Baby Doc”), ruled
Haiti from 1957 to 1986 (Papa Doc from 1957 to 1971; Baby Doc from 1971 to 1986). Both
rulers faced serious and continuous allegations of human rights abuses and financial corruption.
Jean Claude Duvalier ultimately fled Haiti in 1986. When he returned in January 2011, Haitian
authorities arrested Jean Claude Duvalier and reopened a case against him for human rights
abuses and financial misconduct. In January 2012, a Haitian judge held that the Haitian courts
could not prosecute Jean Claude Duvalier for crimes against humanity because Haiti’s statute of
limitations had expired. 2 This ruling directly contradicts well-established international legal
principles.
At the present time, the American Bar Association does not have a clear policy statement
regarding the statutes of limitations for genocide, crimes against humanity, and serious war
crimes. Having such a statement could have been of great benefit to Haiti in encouraging the
proper application international law in the Duvalier matter. Such a statement is consistent with
the ABA’s record of promoting human rights around the world and developing and advancing
the rule of law for the protection of these rights.
The following report demonstrates that the proscription against statutes of limitations for
genocide, crimes against humanity, and serious war crimes is well established within the
international community. By encouraging all governments to apply this international legal
standard, the ABA can (a) minimize the likelihood that relevant authorities will misapply or
misunderstand this well-settled and important legal principle; (b) advance the deterrent objective
of the proscription by promoting a proper understanding of this legal principle; and (c) contribute
to the betterment of human rights around the globe.
I.
International Law Proscribes Statutes of Limitations For (1) Genocide, (2) Crimes
Against Humanity, and (3) Serious War Crimes.
International law proscribes statutes of limitations for the most serious crimes of
international concern, namely genocide, crimes against humanity, and serious war crimes. Not
only do treaties and conventions embody this principle, but national legislation, judicial
Lord David Owen, Reconciliation: Applying Historical Lessons to Modern Conflicts, 19 Fordham Int’l L.J. 324,
329-30 (1995) (quoting Robert Kennedy).
1
2
Baby Doc Avoids Human Rights Abuse Charges in Haiti, The
http://www.guardian.co.uk/world/2012/jan/31/baby-doc-duvalier-charges-haiti.
1
Guardian
(Jan.
30,
2012),
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decisions, and policies provide evidence of widespread state practice and a belief that exempting
these crimes from the relevant statutes of limitations is obligatory.
As Jean-Marie Henckaerts and Louise Doswald-Beck have noted, state practice and
opinio juris3 establish this rule as a norm of customary international law:
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.4
Such state practice reflects a widespread concern that providing limitations periods for the most
heinous crimes would prevent their prosecution, which is necessary to deter commission of such
crimes, provide redress to victims, and ultimately protect fundamental human rights.5
A.
International Law Proscribes Statutes of Limitations For the Crime of
Genocide.6
It is an established principle of customary international law that there is no statute of
limitations for the prosecution and punishment of the crime of genocide. The Convention on the
Prevention and Punishment of the Crime of Genocide, 7 which calls on states to prevent and
3
There is general agreement that customary international law develops from a general and consistent practice of
States followed by them out of a sense of legal obligation, or opinio juris.
4
Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Rule 160 (2005),
available at http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule160.
5
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,
Preamble, Nov. 11, 1970, 754 U.N.T.S. 73, available at http://www2.ohchr.org/english/law/warcrimes.htm
[hereinafter “Convention on Non-Applicability of Statutory Limitations”] (discussing “that war crimes and crimes
against humanity are among the gravest crimes in international law, ... [and] that the effective punishment of war
crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of
human rights and fundamental freedoms, [and] the encouragement of confidence ....”).
The Rome Statute of the International Criminal Court defines “genocide” as “any of the [certain described] acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,”
including, but not limited to, killing or causing serious bodily or mental harm to members of the group. Rome
Statute of the International Criminal Court, art. 6, July 17, 1998, 2187 U.N.T.S. 90, available at http://
untreaty.un.org/cod/icc/statute/romefra.htm [hereinafter “Rome Statute”].
6
7
Convention on the Prevention and Punishment of the Crime of Genocide, Preamble, Dec. 9, 1948, 78 U.N.T.S.
277, available at http://www2.ohchr.org/english/law/genocide.htm (“[G]enocide is a crime under international
2
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punish genocide during times of war and peace, has reached near universal acceptance (with 142
states parties, including the United States) and “is undeniably considered part of customary
international law.”8 Reflecting widespread state practice, many national laws prohibit statutes of
limitations for the crime of genocide. For example, the following are among some of the
countries that have national legislation limiting the application of statutes of limitations to the
crime of genocide: Armenia, Belgium, Burundi, Colombia, Croatia, Democratic Republic of the
Congo, Ethiopia, France, Germany, Israel, Lithuania, Mali, the Netherlands, Korea, Russia,
Rwanda, Slovenia, Spain, the United States, and Uzbekistan.9 In the United States, the Genocide
Convention Implementation Act of 1987 expressly states that there is no statute of limitations for
the crime of genocide.10
International treaties, conventions, and guidelines also embody this proscription. For
example, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity (with 54 states parties) provides that “[n]o statutory limitation shall
apply” to genocide “irrespective of the date of ... commission.”11 Adopted shortly following the
Nuremberg trials, this Convention recalls numerous resolutions of the General Assembly and the
Economic and Social Council that affirmed the “principles of international law recognized by the
Charter of the International Military Tribunal at [Nuremberg]” and notes that “none of the
solemn declarations, instruments or conventions relating to the prosecution and punishment of
war crimes and crimes against humanity made provision for a period of limitation.” 12 This
law, contrary to the spirit and aims of the United Nations and condemned by the civilized world[.]”). The
United States has been a party to this Convention since 1988.
8
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 495 (Sept. 2, 1998), available at
http://www.unhcr.org/refworld/publisher,ICTR,,,40278fbb4,0.html.
See Int’l Committee Red Cross [“ICRC”], Practice Relating to Rule 160. Statutes of Limitation, Customary IHL,
available at http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule160. See generally Alka Pradhan, The Statute
of Limitations for Alien Torts: A Reexamination after Kiobel, 21 Ind. Int’l & Comp. L. Rev. 229, 240-46 (2011)
(discussing state practice for “atrocity crimes”).
9
18 U.S.C. § 1091(e) states that “in the case of an offense under this section, an indictment may be found, or
information instituted, at any time without limitation.”
10
Convention on Non-Applicability of Statutory Limitations, supra note 4, at art. 1(b) (“No statutory limitation shall
apply to the following crimes, irrespective of the date of their commission: … the crime of genocide as defined in
the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not
constitute a violation of the domestic law of the country in which they were committed.”). The United States has
neither signed nor ratified this Convention, but it is a party to the Convention on the Prevention and Punishment of
the Crime of Genocide, supra note 6.
11
12
Id. at Preamble.
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Convention further states, “it is necessary and timely to affirm in international law, through this
Convention, the principle that there is no period of limitation for war crimes and crimes against
humanity, and to secure its universal application.”13 Some states viewed this Convention at the
time of its adoption as the embodiment of previously existing law, 14 while others have since
recognized that it represents customary international law.15 The Rome Statute similarly provides
that crimes within its jurisdiction, including genocide, “shall not be subject to any statute of
limitations.”16
International criminal tribunals and hybrid internationalized tribunals, which apply a
compound of international and national substantive and procedural law, similarly prohibit
statutes of limitations for the crime of genocide. For example, in a frank warning in March 1999
to those suspected of committing such crimes in Kosovo, the President of the International
Criminal Tribunal for the former Yugoslavia (“ICTY”) stated:
I wish to be very clear. The Tribunal has jurisdiction over violations of the laws
and customs of war, grave breaches of the Geneva Conventions, crimes against
humanity and genocide. There is no statute of limitations on these crimes.
13
Id. at art. 1.
See Pradhan, supra note 8, at 237-38 (“Despite the fact that the United States is not party to the U.N. Convention,
there were many other nations at the time of promulgation that believed that ‘the principle of the non-applicability of
statutes of limitation to war crimes had already been recognized in international law.’”)
14
15
One U.S. federal court has stated:
The principle of non-applicability of statutory limitations to certain violations of international law
has been recognized in international instruments. The Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against Humanity provides that “[n]o statutory
limitations period shall apply” to war crimes and crimes against humanity, including genocide.
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against
Humanity, Nov. 26, 1968, art. 1, 754 U.N.T.S. 73, 75 (entered into force Nov. 11, 1970); see also
Rome Statute of the International Criminal Court (“Rome Statute”), July 17, 1998, arts. 5, 29,
U.N. Doc. A/Conf. 183/9 (1998) (entered into force July 1, 2002) (“The crimes within the
jurisdiction of the Court [(i.e., genocide, crimes against humanity, war crimes and ‘the crime of
aggression’)] shall not be subject to any statute of limitations.”). Although the United States is not
a signatory to either the United Nations Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity or the Rome Statute, these instruments
suggest the need to recognize a rule under customary international law that no statute of
limitations should be applied to war crimes and crimes against humanity.
In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 63 (E.D.N.Y. 2005) (emphasis added).
16
Rome Statute, supra note 5, at art. 29.
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Persons indicted by the Tribunal thus remain indicted until they are brought to
trial. While the situation on the ground may change, the law does not. Crimes
will be investigated. Where appropriate, persons will be charged and tried.”17
In the case of atrocities committed in Cambodia between 1975 and 1979, the law establishing the
court to investigate and prosecute the senior leaders of the Khmer Rouge states that “acts of
genocide ... have no statute of limitations.”18 In the case of atrocities committed in East Timor,
the Special Panels for Serious Crimes in East Timor, established by the UN Transitional
Authority in East Timor (“UNTAET”), employ similar rules. Specifically, Section 17.1 of
Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious
Criminal Offences provides that genocide is not subject to any statute of limitations.19
B.
International Law Proscribes Statutes of Limitations for Crimes Against
Humanity.20
It is similarly an established principle of customary international law that there is no
statute of limitations applicable to crimes against humanity.21 The Nazi atrocities at Nuremberg
became known as “crimes against humanity,” and these crimes remain some of the “most serious
crimes of concern to the international community as a whole.”22 Evidencing state practice and
17
Press Release, ICTY, Kosovo: Statement by the President of the ICTY, Gabrielle Kirk McDonald (Mar. 31,
1999), available at http://www.icty.org/sid/7777/en.
18
Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes
Committed During the Period of Democratic Kampuchea, art. 4, NS/RKM/1004/006, (Extraordinary Chambers in
the
Courts
of
Cambodia,
Oct.
27,
2004),
available
at
http://www.eccc.gov.kh/sites/default/files/legaldocuments/KR_Law_as_amended_27_Oct_2004_Eng.pdf
[hereinafter “Law on the Establishment of Extraordinary Chambers”].
19
U.N. Transitional Admin. in East Timor, Regulation No. 2000/15 on the Establishment of Panels with Exclusive
Jurisdiction over Serious Criminal Offences, § 17.1, U.N. Doc. UNTAET/REG/2000/15 (June 6, 2000), available at
http://www.un.org/en/peacekeeping/missions/past/etimor/untaetR/Reg0015E.pdf [hereinafter “Regulation No.
2000/15”] (“The serious criminal offences under Section 10.1 (a), (b), (c) and (f) of UNTAET Regulation No.
2000/11 and under Sections 4 to 7 of the present regulation shall not be subject to any statute of limitations.”).
The Rome Statute defines a “crime against humanity” as “any of the following acts when committed as part of a
widespread or systematic attack directed against any civilian population, with knowledge of the attack,” including,
but not limited to, murder, extermination, enslavement, deportation or forcible transfer of a population, torture, rape
and other forms of sexual violence, and apartheid. Rome Statute, supra note 5, at art. 7(1).
20
21
See generally Ian Brownlie, Principles of Public International Law 567 (6th ed. 2003).
22
William A. Schabas, Convention on the Prevention and Punishment of the Crime of Genocide, available at
http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html (last accessed Oct. 15, 2012). See also London Charter of the
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opinio juris, the following are among some of the countries that have national legislation
proscribing statutes of limitations for crimes against humanity: Albania, Argentina, Belgium,
Burundi, Cuba, Democratic Republic of the Congo, Ethiopia, France, Germany, Hungary, Israel,
Mali, the Netherlands, Niger, Poland, Korea, Russia, and Rwanda.23
The United States has also stated on a number of occasions its practice of proscribing
statutes of limitations for crimes against humanity:

In 1967, 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 the
United States stated:
Her delegation supported the basic human rights objectives sought
through the adoption of a convention on the non-applicability of
statutory limitation to the kinds of crimes of which Nazi criminals
were prosecuted and convicted at Nürnberg, namely war crimes
and crimes against humanity and would co-operate with other
delegations which wished to approach the question in a
constructive manner.24

In 1977, in reply to a question from the Embassy of France, the U.S.
Department of State stated:
It is the view of the United States Government that neither the
[1945 London Agreement], with the [1945 IMT Charter
(Nuremberg)] annexed, nor [the 1945 Allied Control Council Law
No. 10] … contain any provisions setting a time limit for
prosecution or punishment. The United States further regards [the
1945 Allied Control Council Law No. 10] as revoking the benefits
of any statute of limitation in respect of the period specified; and in
International Military Tribunal, art. 6(c), Aug. 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279 (defining crimes
against humanity as “murder, extermination, enslavement, deportation, and other inhumane acts committed against
any civilian population, before or during the war, or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of
the domestic law of the country where perpetrated.”).
23
ICRC, supra note 8. See generally Pradhan, supra note 8, at 240-46 (discussing state practice for atrocity crimes).
24
ICRC, supra note 8, at § 9.
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light of the absence of any provision to the contrary, the offenses
covered in these instruments are considered not to be subject to
limitation concerning their prosecution and punishment.
United States Federal law contains no statute of limitations on war
crimes and crimes against humanity.25
As with the crime of genocide, international treaties, conventions, and guidelines confirm
the proscription against statutes of limitations for crimes against humanity. For example, the
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
Against Humanity and the Rome Statute both proscribe statutes of limitations for crimes against
humanity.26 As Professor William Schabas has stated in his commentary to Article 29 of the
Rome Statute, “The non-applicability of statutory limitations to war crimes and crimes against
humanity has been well recognized in international law since the 1960s.”27 Similarly, under the
European Convention on the Non-Applicability of Statutory Limitations to Crimes Against
Humanity and War Crimes (with seven states parties and one additional signature), crimes
against humanity are not subject to a statute of limitations. Specifically, Article 1 of this
Convention states that “[e]ach Contracting State undertakes to adopt any necessary measures to
secure that statutory limitation shall not apply to the prosecution of ... crimes against humanity
specified in the Convention on the Prevention and Punishment of the Crime of Genocide adopted
on 9 December 1948 by the General Assembly of the United Nations.”28
25
Id. (citing United States, Department of State, Note Addressed to the Embassy of France, 19 May 1977,
Department of State File No. P77 0090-522, reprinted in John A. Boyd, Digest of United States Practice in
International Law, 1977, US Department of State Publication 8960, Washington, D.C., 1979, p. 927).
Convention on Non-Applicability of Statutory Limitations, supra note 4, at art. 1(b) (“No statutory limitation shall
apply to the following crimes, irrespective of the date of their commission: ... Crimes against humanity whether
committed in time of war or in time of peace as they are defined in the Charter of the International Military
Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11
December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and
inhuman acts resulting from the policy of apartheid ....”); Rome Statute, supra note 5, at art. 29 (“The crimes within
the jurisdiction of the Court shall not be subject to any statute of limitations.”). The United States has neither signed
nor ratified the Convention on Non-Applicability of Statutory Limitations, but it is a party to the Geneva
Conventions.
26
27
Pradhan, supra note 8, at 247.
28
European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War
Crimes, art. 2, Jan. 25, 1974, Europ. T.S. No. 82, 13 I.L.M. 540, available at
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=082&CM=1&CL=ENG.
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In addition, as with the crime of genocide, international criminal tribunals and hybrid
internationalized tribunals have proscribed statutes of limitations for crimes against humanity.
For example, the Law on the Establishment of Extraordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes Committed During the Period of Democratic
Kampuchea states that “[c]rimes against humanity ... have no statute of limitations.”29 The rules
for the Special Panels for Serious Crimes in East Timor also provide that crimes against
humanity are not subject to any statute of limitations.30
International jurists have confirmed that customary international law proscribes the
application of any statute of limitations to crimes against humanity. For example, in the
Almonacid-Arellano case, the Inter-American Court of Human Rights affirmed that crimes
against humanity are not susceptible to statutes of limitations. Citing favorably the Convention
on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,
the Court stated:
Indeed, as a crime against humanity, the offense committed against Mr.
Almonacid-Arellano is neither susceptible of amnesty nor extinguishable. As
explained in paragraphs 105 and 106 of this Judgment, crimes against humanity
are intolerable in the eyes of the international community and offend humanity as
a whole. The damage caused by these crimes still prevails in the national society
and the international community, both of which demand that those responsible be
investigated and punished.31
The Court further stated that it “believes that the non-applicability of statutes of
limitations to crimes against humanity is a norm of General International Law (jus cogens),
which is not created by said Convention, but it is acknowledged by it.”32 Therefore, the Court
concluded that it would apply this principle to states that have not acceded to the Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
based on its status under international law.
29
Law on the Establishment of Extraordinary Chambers, supra note 18, at art. 4.
Regulation No. 2000/15, supra note 19, at § 17.1 (“The serious criminal offences under Section 10.1 (a), (b), (c)
and (f) of UNTAET Regulation No. 2000/11 and under Sections 4 to 7 of the present regulation shall not be subject
to any statute of limitations.”).
30
31
Inter-American Court of Human Rights, Almonacid-Arellano Case, Judgment of Sept. 26, 2006, Inter-Am. Ct.
H.R. (Ser. C) No. 154, ¶ 152 (2006).
32
Id. at ¶ 153.
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Judge A.A. Cancado-Trindade endorsed this position in his concurring opinion:
The classification of crimes against humanity is a great contemporary victory,
which encompasses, in my view, not only International Human Rights Law, but
also International Criminal Law insofar as it reflects the universal condemnation
of gross and systematic violations of fundamental and irrevocable rights, i.e. jus
cogens violations; hence the non-applicability, in the event of their occurrence, of
the so-called statutes of limitations in national or domestic legal systems. The
category of crimes against humanity, in my opinion, is yet another expression of
the universal juridical conscience, of its immediate reaction against crimes that
affect humanity as a whole.33
Similarly, in Prosecutor v. Tadic, the International Criminal Tribunal for the Former
Yugoslavia (“ICTY”) referred to the judgments of the French courts in the trial of Klaus Barbie,
head of the Gestapo of Lyons during the Second World War, and stated, “the fact that a crime
against humanity is an international crime was relied upon to deny the accused’s appeal on the
bases of disguised extradition and an elapsed statute of limitations.”34
C.
International Law Proscribes Statutes of Limitations for Serious War
Crimes.35
Customary international law also proscribes statutes of limitations for the prosecution and
punishment of serious war crimes. 36 Like genocide and crimes against humanity, the
33
Id. at ¶ 26 (Cancado-Trindade, concurring).
Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, ¶ 642 (Int’l Crim. Trib. for the Former
Yugoslavia May 7, 1997), available at http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf.
34
The Rome Statute defines “war crimes” as (a) grave breaches of the Geneva Conventions of August 12, 1949,
including, but not limited to, willful killing and torture or inhuman treatment; (b) other serious violations of the laws
and customs applicable in international armed conflict, including, but not limited to, intentionally directing attacks
against the civilian population or against individual civilians not taking direct part in hostilities; and (c) in the case
of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva
Conventions, including, but not limited to, “violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment, and torture.” Rome Statute, supra note 5, at art. 8(2) (a)-(c).
35
36
Rule 160 in the International Committee of the Red Cross study on customary international humanitarian law
states “Statutes of limitation may not apply to war crimes.” Jean-Marie Henckaerts & Louise Doswald-Beck,
Customary International Humanitarian Law: Rule 160 (2005), available at http://www.icrc.org/customaryihl/eng/docs/v1_cha_chapter44_rule160. Volume 1 of the study explains the basis for the conclusion that this rule
constitutes customary international law. Id. Volume 2 provides documentation of practice relating to this rule. See
http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule160. See also Brownlie, supra note 21, at 567; Escrito
Presentado Por Juristas Especializados en Derechos Internacional en Calidad de Amici Curiae, Caso Rios Montt y
9
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international community considers certain war crimes among “the gravest crimes in international
law.”37 Typical definitions of serious war crimes include willful killing, torture or inhumane
treatment, and willfully causing great suffering or serious bodily injury.38
International humanitarian law has long recognized that war crimes are not amenable to
amnesties or prescriptions of any kind, and there exists a substantial and growing practice in
international, regional and national legal systems to prohibit amnesties for grave human rights,
including war crimes. 39 During the drafting of the 1977 Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International
Armed Conflicts (“Additional Protocol II”), the international community took up the issue of
amnesties. 40 When Article 6(5) of Additional Protocol II was adopted, which relates to
amnesties granted at the end of hostilities, the Union of Soviet Socialist Republics stated that the
provision could not be construed to enable war criminals, or those guilty of crimes against
humanity, to evade punishment.41
The International Committee of the Red Cross (“ICRC”), citing cases in Argentina,
Chile, and Ethiopia as examples, has noted that consistent state practice since that time reflects
the near universal acceptance of this principle.42 In fact, a number of national laws proscribe
otros, relativo a la Masacre de Dos Erres [Brief of International Law Experts as Amici Curiae, Case of Rios Montt
and others, concerning the Massacre of Dos Erres], No. 3829-2012 (Corte de Constitucionalidad de Guatemala,
Sept. 25, 2012), available in English at
http://www.americanbar.org/tools/digitalassetabstract.html/content/dam/aba/administrative/individual_rights/FinalE
nglishLasDosErresAmicus.pdf [hereinafter “Brief of International Law Experts”] .”
37
Convention on Non-Applicability of Statutory Limitations, supra note 4, at Preamble.
38
See, e.g., Rome Statute, supra note 5, at art. 8; Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, art. 50, Aug. 12, 1949, 75 U.N.T.S. 31, available at
http://www.icrc.org/ihl.nsf/full/365?opendocument (hereinafter “First Geneva Convention”] (“Grave breaches to
which the preceding Article relates shall be those involving any of the following acts, if committed against persons
or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and
appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”).
39
See Brief of International Law Experts, supra note 2, at 3.
40
Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Rule 159 (2005),
available at http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule159.
Id. (“When Article 6(5) of Additional Protocol II was adopted, the USSR stated, in its explanation of vote, that the
provision could not be construed to enable war criminals, or those guilty of crimes against humanity, to evade
punishment. The ICRC shares this interpretation.”).
41
Id. (citing Chile, Appeal Court of Santiago, Videla case; Ethiopia, Special Prosecutor’s Office, Mengitsu and
Others case; Argentina, Federal Judge, Cavallo case and stating, “Most amnesties specifically exclude from their
scope persons who are suspected of having committed war crimes or other specifically listed crimes under
international law.”).
42
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statutes of limitations for specific war crimes, including, but not limited to, those of Albania,
Argentina, Azerbaijan, Belarus, Burundi, Congo, Croatia, Democratic Republic of the Congo,
Estonia, Germany, Hungary, Iraq, Israel, Jordan, Lithuania, Luxembourg, Mali, the Netherlands,
Niger, Korea, Moldova, Russia, Rwanda, Slovenia, and Yemen.43 In the United States, Congress
enacted the War Crimes Act of 1996—with overwhelming support of both Houses—which
criminalizes breaches of the Geneva Conventions.44 This statute does not contain a statute of
limitations.
The U.S. government has publicly expressed its belief that serious war crimes are not
subject to statutes of limitations. For example, in 2001, former Secretary of State Madeleine
Albright when reflecting about her tenure as Secretary of State commented that she “always said
that the statute of limitations on war crimes does not run out.” 45 In addition, in a 1991
diplomatic note to Iraq, the United States stated to the government of Iraq that “under
International Law, violations of the Geneva Conventions … or related International Laws of
armed conflict are war crimes, and individuals guilty of such violations may be subject to
prosecution at any time, without any statute of limitations. This includes members of the Iraqi
armed forces and civilian government officials.” 46 In another similar diplomatic note, the
United States reiterated that “Iraqi individuals who are guilty of … war crimes … are personally
liable and subject to prosecution at any time.”47
International treaties, conventions, and guidelines also provide support for the
proscription of statutory limitations in the case of serious war crimes. As noted above, the
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
Against Humanity proscribes statutes of limitations for war crimes (as defined in the Charter of
the International Military Tribunal), particularly “grave breaches” under the Geneva
43
ICRC, supra note 8. See generally Pradhan, supra note 8, at 240-46.
18 U.S.C. § 2441(a) (“Whoever, whether inside or outside the United States, commits a war crime, in any of the
circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years,
or both, and if death results to the victim, shall also be subject to the penalty of death.”).
44
45
PBS, Trying Milosevic, Online NewsHour (June 28, 2011), http://www.pbs.org/newshour/bb/yugoslavia/janjune01/milosevic_6-28.html.
46
ICRC, supra note 8 (citing United States, Department of State, Diplomatic Note to Iraq, Washington, 19 January
1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21
January 1991, Annex I, p. 2).
47
Id. (citing United States, Department of State, Diplomatic Note to Iraq, Washington, 21 January 1991, annexed to
Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22130, 21 January 1991, p. 4).
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Conventions, such as willful killing, torture or inhumane treatment, and willfully causing great
suffering or serious bodily injury.48 Similarly, Article 29 of the Rome Statute proscribes statutes
of limitations for crimes within its jurisdiction, including war crimes, such as willful killing,
torture or inhumane treatment, and willfully causing great suffering or serious bodily injury,
“when committed as part of a plan or policy or as part of a large-scale commission of such
crimes.”49 Providing further support for the proscription against statutes of limitations for war
crimes, the United Nations has refused to participate in or fund transitional justice arrangements
that support amnesty for war crimes in post-conflict societies.50
In addition, international criminal tribunals and hybrid internationalized tribunals
proscribe statutes of limitations for serious war crimes. For example, the rules for the Special
Panels for Serious Crimes in East Timor provide that certain “serious criminal offences” are not
subject to any statute of limitations.51 The European Commission of Human Rights stated in a
1976 case that “the rules of prescription do not apply to war crimes.”52
48
Convention on Non-Applicability of Statutory Limitations, supra note 4, at art. 1(a) (“No statutory limitation shall
apply to the following crimes, irrespective of the date of their commission: War crimes as they are defined in the
Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13
February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the
‘grave breaches’ enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims.”). See
also, e.g., First Geneva Convention, supra note 38, at art. 50 (“Grave breaches to which the preceding Article relates
shall be those involving any of the following acts, if committed against persons or property protected by the
Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great
suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly.”). The United States has neither signed nor ratified the
Convention on Non-Applicability of Statutory Limitations, but it is a party to the Geneva Conventions.
Rome Statute, supra note 5, at arts. 8, 29 (“The crimes within the jurisdiction of the Court shall not be subject to
any statute of limitations.”).
49
50
See Brief of International Law Experts, supra note 36, at 15 (citing U.N. Secretary General, The Rule of Law and
Transitional Justice in Conflict and Post-Conflict Societies, ¶ 64(c), U.N. Doc. S/2004/616 (Aug. 23 2004),
available
at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement
(recommending that peace agreements and Security Council resolutions and mandates “[r]eject any endorsement of
amnesty for genocide, war crimes, or crimes against humanity [and] … ensure that no such amnesty previously
granted is a bar to prosecution before any United Nations-created or assisted court”)).
Regulation No. 2000/15, supra note 19, at § 17.1 (“The serious criminal offences under Section 10.1 (a), (b), (c)
and (f) of UNTAET Regulation No. 2000/11 and under Sections 4 to 7 of the present regulation shall not be subject
to any statute of limitations.”).
51
52
ICRC, supra note 8 (quoting X v. Federal Republic of Germany, App. No. 1611/62, 1965 Y.B. Eur. Conv. on H.R.
158, 168 (Eur. Comm’n on H.R.)).
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Finally, international jurists and international law experts (such as Elizabeth Ohio Benito,
former judge of the International Criminal Court and the ICTY; Thomas Buergenthal, former
President of the Inter-American Court of Human Rights; David M. Crane, former Chief
Prosecutor of the Special Court for Sierra Leone; Pedro Nikken, former President of the InterAmerican Court of Human Rights; Patricia M. Wald, former judge of the ICTY; and Raul
Zafaroni, Judge of the Supreme Court of Justice of Argentina) have stated that “international
humanitarian law has long recognized that war crimes are not amenable to amnesties or
prescriptions of any kind.” 53 According to these experts, the prohibition against impediments to
investigation and prosecution of such crimes is firmly settled in international law:
The jurisprudence of international courts, tribunals and supervisory mechanisms
and the position adopted by numerous national legal systems, points to extensive
practice precluding amnesties … for grave human rights violations including
genocide, crimes against humanity, war crimes and torture. The prohibition on
amnesty and other legal impediments to investigation and prosecution has
become a well-settled norm of international law.54
II.
The ABA Should Issue a Policy Statement Urging All Countries Not to Apply a
Statute of Limitations to Serious Crimes.
As the misapplication of law in the Duvalier matter demonstrates, it is imperative
that the ABA encourage all countries not to apply statutes of limitation to genocide,
crimes against humanity, and serious war crimes. Doing so will minimize the likelihood
that relevant authorities will misapply or misunderstand this well-settled and important
legal principle; advance the deterrent objective of the proscription by promoting a proper
understanding of this legal principle in countries in which the ABA is making
contributions; and contribute to the betterment of human rights around the globe.
Respectfully Submitted,
Barton Legum
Chair, ABA Section of International Law
August 2013
53
Brief of International Law Experts, supra note 36, at 13.
54
Id. at 3 (emphasis added).
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GENERAL INFORMATION FORM
Submitting Entity: Section of International Law
Submitted By: Barton Legum, Chair, Section of International Law
1. Summary of Resolution(s): This resolution asks that the American Bar Association urge
all countries, consistent with international law, not to apply any statute of limitations with
respect to (1) genocide, (2) crimes against humanity, and (3) serious war crimes.
2. Approval by Submitting Entity: The Council of the Section of International Law has
approved.
3. Has this or a similar resolution been submitted to the House or Board previously?
No.
4. What existing Association policies are relevant to this resolution and how would they be
affected by its adoption?
There are no existing policies on this matter.
5. What urgency exists which requires action at this meeting of the House?
There are current cases in international tribunals where an ABA policy position could be
helpful.
6. Status of Legislation. (If applicable)
N/A
7. Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
ABA’s Office of Governmental Affairs would forward this statement broadly. The policy
could also be stated, where appropriate and in accordance with ABA procedures, in
statements, letters, testimony or briefs.
8. Cost to the Association. (Both direct and indirect costs)
None.
9. Disclosure of Interest. (If applicable)
N/A
10. Referrals.
A copy of this resolution and report will be circulated to all ABA Sections and Divisions
for support and co-sponsorship.
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11. Contact Name and Address Information. (Prior to the meeting)
Becky Farrar, 1121 Arlington Blvd #220, Arlington, VA 22209 rfarrar88@gmail.com
12. Contact Name and Address Information. (Who will present the report to the House?)
ABA Section of International Law Delegates
Glenn P. Hendrix
Arnall Golden Gregory LLP
Suite 2100
171 17th Street, N.W.
Atlanta, GA 30363
Phone: 404/873-8692
E-Mail: glenn.hendrix@agg.com
Jeffrey Golden
London School of Economics
Houghton Street
London, WC2A 2AE
United Kingdom
Phone: 447785500811
E-mail: j.b.golden@lse.ac.uk
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
This resolution asks the American Bar Association to urge all countries, consistent
with international law, not to apply any statute of limitations with respect to (1)
genocide, (2) crimes against humanity, and (3) serious war crimes.
2.
Summary of the Issue that the Resolution Addresses
When Jean Claude Duvalier returned to Haiti in January 2011, Haitian authorities
arrested him and reopened a case against him for human rights abuses and financial
misconduct. In January 2012, a Haitian judge held that the Haitian courts could not
prosecute Jean Claude Duvalier for crimes against humanity because Haiti’s statute of
limitations had expired. This ruling by the Haitian judge directly contradicted wellestablished international legal principles.
3.
Please Explain How the Proposed Policy Position will address the issue
ABA’s encouragement of all countries not to apply a statute of limitations to serious
crimes, namely genocide, crimes against humanity and serious war crimes, will
minimize the likelihood that relevant authorities will misapply or misunderstand this
important legal principle. As the largest bar association in the world, ABA is uniquely
positioned to make an important contribution with this policy statement. The
statement also supports ABA’s work on Rule of Law globally.
4.
Summary of Minority Views
Some may argue that the resolution doesn’t go far enough and should also include
other crimes like human trafficking. (Counter: we have confined this resolution to
the specific crimes that are included in current international jurisprudence.)
16