The Applicability Of Statutory Limitations In International Courts

Jackson 1

The Applicability of Statutory Limitations in International Courts

Taylor Jackson Dr. Hickman GOV 450 – Genocide and War Crimes 2 December 2008

Jackson 2 Every passing year seems to bring the formation of a new tribunal to try war criminals for various atrocities committed around the globe. With the increase in the number of such tribunals around the world and the trend towards a more universal system of justice, questions surrounding the applicability of certain legal standards are being raised. One such standard is the idea of statutory limitations and their applicability. This paper will endeavor to answer whether or not such statues should be applied in international trials. This will be completed by investigating two cases tried in various national courts that, due to the nature of the crimes involved, could have been tried before international courts. Had these cases been tried in an international venue, questions surrounding the applicability of statutory limitations would have likely been called into question. First, the trial of former Mexican president Luis Echeverría Álvarez for his alleged role in the 1968 Tlatelolco Massacre will be examined. In addition, the attempts to try former Chilean dictator Augusto José Ramón Pinochet Ugarte for his alleged atrocities will be investigated. By examining both of these unique cases, it can easily be argued that the stance on statutes of limitation elaborated by current international conventions would lead to unfair trials. Therefore, a universal requirement that upholds the inapplicability of statutory limitations on charges of genocide and other crimes against humanity in international courts should not be allowed to stand. In order to argue whether or not statues of limitation should be applicable in cases tried before international courts, a definition must be established. For the purposes of this paper, a statute of limitation will be defined as “A statute applying to both civil and criminal cases which requires suit or prosecution within a prescribed period of time following the civil injury or the date of the crime” (Cornell University Law School). In the case of a charge of genocide or another crime against humanity, a statute of limitation would require a case to be brought

Jackson 3 forward in an international court or tribunal before the passing of a predetermined amount of time. Current international conventions support the idea that statues of limitations are not applicable when dealing with charges of genocide or other crimes against humanity in international courts. The non-observance of such statutes first became common practice after World War II, when it was adopted by many states as custom. The first tangible agreement where states agreed on the inapplicability of statues of limitation when prosecuting such crimes was the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (Ginsburgs). Entering into force in 1970, the convention stated that “no statutory limitation shall apply” to a host of crimes that fall under the general banner of war crimes and crimes against humanity (Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity). This idea was further solidified in the formation of the Rome Statute of the International Criminal Court. Article 29 of the Rome Statute states that “crimes within the jurisdiction of the [International Criminal Court] shall not be subject to any statute of limitations.” With 108 states ratifying the Rome Statute and many making changes to domestic policy to implement its provisions, a nearly universal standard seems to have been established: no statutes of limitation should be applied to such crimes (Coalition for the International Criminal Court). Even before examining individual cases where this universal standard would be problematic, the vagueness of the Rome Statute and its precursors is the source of many problems on its own. One such example would be the integration of the Rome Statute’s provisions into Argentina’s domestic policies. Domestic Argentinean law provides for the application of statutes of limitations in cases adjudicated within the country. However, several

Jackson 4 court rulings since Argentina’s 2001 accession to the Rome Statute have rendered statutes of limitation inapplicable in some cases tried domestically. In several instances where crimes by former leaders could fit the vague definition of a crime against humanity, judges have determined that statutes of limitation are not applicable, even though these cases fell under the jurisdiction of Argentinean courts. These judges seemingly based their rulings on international agreements rather than on Argentina’s own constitution, which by all accounts in the country’s supreme law (Alvarez). These rulings set a dangerous precedent. The Argentinean judges apparently viewed the Rome Statute as being applicable to cases tried in Argentinean courts, something most likely not anticipated in the creation of the Rome Statute. In this case, the vagueness of the Rome Statute, especially Article 29, denied several people accused of crimes this basic safeguard employed by Argentinean law. While this argument could serve well as one against international law in general, it can also be employed on this more basic level. A vague and universal “one size fits all” policy surrounding statues of limitation does not adequately protect the rights of accused persons and allows legal officials in states party to circumvent established domestic legal standards. One case where issues surrounding statutes of limitation have come to the forefront is the prosecution of former Mexican president Luis Echeverría Álvarez for his alleged role in the 1968 massacre at Tlatelolco. Acting as Interior Minister at the time, Echeverría is alleged to have orchestrated the massacre of between 25 and 350 peacefully demonstrating students in Mexico City’s Plaza de las Tres Culturas (Castillo). Moreover, Echeverría is alleged to have taken part in the massive cover-up of the event which aimed to erase nearly every sign of the atrocity (Weiner). There have been several attempts to try Echeverría in Mexican courts. However, none have resulted in a conviction. In 2004, Echeverría was tried on charges stemming from another

Jackson 5 student massacre commonly known as Corpus Christi in 1971. The former president was not forced to stand trial on these charges due to the fact that the 30 year statute of limitations had been exhausted (Kok). Later, when tried for the 1968 Tlatelolco massacre in 2006, a lower court judge ruled against Echeverría and ordered him into house arrest. Upon appeal, a higher court ruled on a procedural motion that he was not required to stand trail because he bore “no responsibility” (Castillo). During this prolonged episode of legal confusion, the 84-year-old Echeverría was left attempting to defend himself, with the help of legal counsel, nearly 40 years removed from the incident. At the age of 84, it is hard to imagine Echeverría having the chance to defend himself adequately. The diminished mental capacity that accompanies old age and the sheer amount of time elapsed between the incident and the trial would be factors contributing to a trial that would not be entirely fair. Echeverría’s case, if it were to be tried internationally, is one in which a universal policy concerning the inapplicability of statutes of limitations would prove problematic. Had Echeverría been forced to stand trial for his crimes, the case would have encountered two problems. First of all, there is an issue of elapsed time. The incident occurred in the summer of 1968, shortly before the Mexico City Olympic Games. As attempts to prosecute Echeverría did not surface until 40 years after the incident, there is a significant possibility that much of the evidence needed to fully and fairly convict Echeverría would have disappeared or been tainted. Also, many of the people involved in the incident could have passed away or details of the incident could have escaped their memory. While trials must certainly take place at some point after an incident occurs, 40 years is quite excessive. Additionally, Echeverría’s old age at the time of prosecution could arguably hinder a fair trial. With each passing year, it would become harder for Echeverría to defend himself against the horrific charges of genocide that he faced. While many believe that

Jackson 6 Echeverría escaped with murder on a massive scale, there simply appears to be too many things hindering a fair trial. In this case, the application of statutory limitations yielded the fairest verdict possible. Had the case been tried in an international venue and existing international conventions regarding statutory limitations upheld, Mexicans would have been left with perhaps a false and unfair conviction or a maddening acquittal. Especially in this instance, it appears as if maintaining the status quo is not always the worst of ideas. Another case, if tried in an international court, where fairness can be called into question is the attempted prosecution by a Spanish court of former Chilean dictator Augusto José Ramón Pinochet Ugarte. Pinochet is accused of committing a wide array of atrocities during his horrific and tyrannical reign. Pinochet began his rule in a 1973 military coup. He is alleged to have committed his gravest atrocities between ascending the Chilean Presidency in 1973 and 1978. His rule was finally ended in 1990 with an amnesty deal and eventually fled the country. While taking refuge in the United Kingdom, a Spanish court attempted to have him extradited to Spain so that he could face trial on charges stemming from his actions in Chile. Questions concerning the Spanish court’s jurisdiction over the matter and Pinochet’s health abounded. After a long period of litigation and a comprehensive medical examination, it was eventually decided by a British court that Pinochet was not to be extradited to Spain on the grounds that his bad state of health made him unfit for prosecution. Thus, he was not required to stand trial (Nicholls). Had Pinochet’s case been tried in an international court and international conventions regarding statutory limitations upheld, it can be argued that a mentally and physically unfit man could have been convicted of crimes that occurred many years before his prosecution. Even more so than Echeverría, whose questionable mental state can only be assumed by virtue of his old age, Pinochet’s ailing mental and physical health would arguably not afford him the possibility of

Jackson 7 adequately defending himself against the charges brought before him. Under Spanish law, Pinochet would not have had to serve jail time if convicted; therefore any questions concerning the humanity of imprisoning the former Chilean leader would be irrelevant. However, the goal of the proposed Spanish trial of Pinochet would have been to create “an historical record” of the atrocities committed and hold him “accountable” for his actions (Weinberg). This is not entirely different from what the purpose of a trial in an international venue would be: more for the public display of justice than for the actual incarceration of the perpetrator. Therefore, it can be argued that the proposed Spanish trial or an international trial would have served to mock Pinochet and unfairly convict him in the public eye. If some form of statutory limitations were to apply, the possibility of public outrage concerning the unfair conviction of Pinochet or his acquittal on the grounds of faulty evidence would be eliminated. Scholars tend to disagree vehemently on this issue. Some argue that the international standard of not applying statutory limitations should be upheld for reasons of establishing a historical record of crimes and those who committed them. On the other hand, scholars such as William Schabas, director of the Irish Centre for Human Rights at Galway’s National University of Ireland, tend to acknowledge the existence of statutory limitations at the national level for a multitude of crimes and don’t seem to find much of a problem with them. Schabas elaborates more on the issue by saying that it “is more ‘valuable’ from an international justice perspective to focus on ‘fresh crimes’ involving genocide in countries like Rwanda and Sierra Leone” (Weinberg). Utilizing Schabas’ thoughts, it can be argued that not only would applying statues of limitations to serious crimes tried before international courts prevent unfair trials but also keep the international justice venues unclogged and focused on the most pressing issues of the day.

Jackson 8 While past atrocities should not be entirely forgotten, international courts could better prove their relevancy by hearing cases that affect people at the present time. By examining the above examples, especially the cases of Echeverría and Pinochet, it can easily be seen how current international conventions regarding the applicability of statutory limitations are problematic. Not only does the standard of inapplicability seem to unnecessarily infiltrate domestic legal systems, as seen in the integration of Rome Statute provisions into domestic Argentinean policy, it would also prevent fair proceedings in an international trial. As seen in the cases discussed in this paper, the application of statutory limitations would, in most cases, eliminate the possibility of an unfair trail because of tainted or disappeared evidence due to the passing of an excessive amount of time. If Echeverría’s case were to be tried in an international venue, the possibility of an unfair conviction would be great due to the fact that 40 years would have passed between the incident and his prosecution. However, if a statute of limitation were to be applied, that possibility would greatly diminish. Additionally, the application of statutory limitations would have most likely prevented Pinochet from being unfairly prosecuted in an international trial by virtue of his inability to defend himself due to an ailing physical and mental state. Without any doubt, there is much emotion that engulfs a population affected by grave atrocities and even among those populations that witnessed the atrocities from afar. This emotion leads to the intense desire to see justice served to those who committed the atrocities. In many cases, those seeking this justice would easily sacrifice a fair trial for a comforting conviction of the person who committed the atrocity. The application of statutory limitations in international venues would take one step to ensure that those facing charges of genocide and other crimes

Jackson 9 against humanity receive a fair trial. Even though the world’s most atrocious human rights violators may appear in these international courts, they are unquestionably entitled to a fair trial. This paper barely scratches the surface of this complex legal issue. The lack of existing research on this topic is alarming, as there is still much to be researched and pursued. Future research could go in several directions. First, ways to amend existing international conventions on this topic could be examined. The vagueness, especially of Article 29 of the Rome Statute, leaves much to be desired. The possibility and feasibility of implementing a 20 or 30 year statutory limitation on genocide and other crimes against humanity is worthy of being explored. Also worthy of investigation is the possibility of adding a provision to the Rome Statute that prohibits someone over a certain age from being tried. At present, there is only a lower age limit, 18 years of age, and not an upper age limit. Additionally, research for this paper found that numerous states at first rejected the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity but later signed the Rome Statute. The reasons for the rejection and the eventual accession to the Rome Statute could be explored. Finally, as seen in Argentina, the Rome Statute has had several implications on domestic law. The implications of the Statute on the domestic law in other various countries could be researched. Without a doubt, much research needs to be completed on this topic in order to ensure that the continually evolving system of international justice is operated in the fairest manner possible.

Jackson 10

Works Cited Alvarez, Alejandro E. "The Implementation of the ICC Statute in Argentina." Journal of International Criminal Justice 5.2 (2007): 480-92. Lexis Nexis Academic. 11 November 2008. Castillo, E. E. "Mexican Court Rules no Trial for Former President Accused of Genocide in 1968 Massacre." Associated Press 12 July 2007, sec. International News: Lexis Nexis Academic 11 November 2008. Coalition for the International Criminal Court. "Factsheet: States Parties to the Rome Statute of the ICC, According to the UN General Assembly Regional Groups." 18 July 2008. . Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Vol. A/7218 (1968)., 1968. University of Minnesota Human Rights Library11 November 2008 . Cornell University Law School. "Statute of limitations." . Ginsburgs, George. The Nuremberg Trial and International Law. Martinus Nijhoff Publishers, 1990. Kok, Ruth A. Statutory Limitations in International Criminal Law. Cambridge University Press, 2007.

Jackson 11 Nicholls, Clive. "Reflections on Pinochet." Virginia Journal of International Law Association 41 Va. J. Int'l L. 140 (2000) Lexis Nexis Academic. 1 December 2008. Rome Statute of the International Criminal Court. "Part 3. General Principles of Criminal Law." United Nations Treaty Collection. 12 July 1999. . Weinberg, Paul. "Rights: The Dilemma of Dealing with Aged Human Rights Abusers." Global Information Network 10 December 2003: 1. ProQuest 11 November 2008. Weiner, Tim. "Mexico Digs at Last for Truth about 1968 Massacre." The New York Times 7 February 2003 .