We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 12 February 2016
On 26 November 1968 the General Assembly of the United Nations adopted and opened for signature, ratification and accession a Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. The purpose of this paper is to explain the origin of the Convention, to summarize its principal provisions and to comment briefly upon them, particularly in the light of the discussions that preceded its adoption. We shall not deal in depth with the general principles of law involved in such discussions nor with the historical and political matters closely connected with the reasons that made it “necessary and timely”—to use the wording of the Preamble of the Convention—to affirm that international law does not recognize any period of limitation for some major crimes. Of course, the informative nature of this paper will not preclude some criticism, when pertinent.
1 Resolution 2391 (XXIII).
2 U.N. Doc. E/CN. 4/906, particularly Part II.
3 Nos. 3–4, 1966, Paris. In addition to the views of Justice Cohn, Dautricourt, Glaser, Herzog, Jeschek, Jimenez de Asua, Maktos, Mueller, Outrata, Roling, Sawicki, Vasak, Vassali and Yotis, the special issue contains the opinions of the American, Czechoslovak and Polish groups of the Association.
3a The Commission acted on a proposal submitted by Poland (U.N. Doc. E/CN. 4/L. 733/Rev. 1), amended by France. The Polish proposal dealt only with “major Nazi war crimes”; France asked to include also crimes against humanity.
4 E/CN. 4/906.
5 U.N. Doc. E/CN. 4/928.
6 The joint working group comprised 15 members. The draft was adopted by a vote of eight to none, with seven abstentions, an indication of its controversial nature. Article I of the working group's draft differed from the final text in that it enumerated those “inhuman acts” that were considered crimes against humanity. The draft did not contain any provision on extradition. See the Report of the joint working group, A/C. 3/L. 1503.
7 U.N. Doc. A/7342 and Corr. 1.
8 Algeria, Bulgaria, Burma, Byelorussia, Central African Republic, Ceylon, Chad, Chile, China, Cuba, Cyprus, Czechoslovakia, Dahomey, Ethiopia, Gabon, Ghana, Guinea, Hungary, India, Indonesia, Iran, Iraq, Israel, Ivory Coast, Kenya, Kuwait, Lebanon, Liberia, Libya, Malaysia, Maldive Islands, Mauritania, Mexico, Mongolia, Morocco, Nepal, Niger, Nigeria, Pakistan, Philippines, Poland, Rumania, Rwanda, Saudi Arabia, Senegal, Singapore, Southern Yemen, Sudan, Syria, Togo, Tunisia, Ukraine, Union of Soviet Socialist Republics, United Arab Republic, United Republic of Tanzania, Upper Volta, Yugoslavia, Zambia.
9 Australia, El Salvador, Honduras, Portugal, South Africa, United Kingdom, United States.
10 Afghanistan, Argentina, Austria, Belgium, Bolivia, Brazil, Canada, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Greece, Guatemala, Guyana, Haiti, Iceland, Ireland, Italy, Jamaica, Japan, Laos, Luxembourg, the Netherlands, New Zealand, Nicaragua, Norway, Panama, Peru, Spain, Sweden, Thailand, Turkey, Uruguay, Venezuela.
11 Albania, Barbados, Botswana, Burundi, Cambodia, Cameroun, Congo (Brazzaville), Congo (Democratic Republic of), Dominican Republic, Equatorial Guinea, Gambia, Jordan, Lesotho, Madagascar, Malawi, Mali, Malta, Mauritius, Paraguay, Sierra Leone, Somalia, Swaziland, Trinidad and Tobago, Uganda, Yemen.
12 For the details of this development, see U.N. Doc. E/CN. 4/906, paragraphs 6–27.
13 U.N. Doc. E/CN. 4/906, paragraphs 20–42.
14 Council of Europe, Consultative Assembly, Doc. 1857, 5 January 1965.
The Consultative Assembly of the Council of Europe met in January 1969 and adopted a resolution urging governments and parliaments to take measures to prevent crimes against humanity from remaining unpunished by reason of the application of statutory limitations, as well as a recommendation that the Committee of Ministers instruct a committee of governmental experts to draw up a European convention on the matter, “taking into account the criticism raised against the U.N. Convention by the representatives of several European States”.
15 Quoted by J. Graven, loc. cit. 394.
16 Ibid. 401.
17 The Knesset had already dealt with the matter in October 1964 (See Divrei HaKnesset, 19–21 October 1964). Its Committee on Foreign Relations and Security (see Divrei HaKnesset, 20–21 December 1964) conveyed to the Parliaments of all the countries with which Israel maintains diplomatic relations its deep preoccupation with the danger that Nazis who should be punished for their crimes against humanity and the Jewish people could escape from justice because of the existing ordinary rules on statutes of limitations. As to legislation, see below.
18 For national legislation on this question, see U.N. Doc. E/CN. 4/906, paragraphs 62–100.
19 See ibid., paragraph 91, for a detailed survey of the German legislation on war crimes and crimes against humanity. It is worth noting that the 1965 Act was due to expire the same day on which the U.N. Convention is to be opened for signature.
20 A new element to be taken into consideration is a decision handed down by the Berlin Division of the Federal Supreme Court in May 1969, according to which an amendment to the Penal Code made in September 1968 has to be interpreted in such a way that an accomplice to murder who acted on superior order without demonstrable base personal motives could now no longer be prosecuted. This affects the so called “Schreibtischmoerder”, the number of which is certainly not small.
21 The Preamble “considers” that war crimes and crimes against humanity are among the gravest crimes in international law. It was not felt necessary to include any constitutive provision, it being assumed that the idea is already accepted that those crimes are crimes in international law.
22 The use of the word “among” implies that there are other grave crimes in international law, such as crimes against peace. The fact that the Convention does not apply to them does not prejudge the question of the non-applicability of statutory limitation to such other crimes. This is expressly stated in the commentary on the Preamble in the Secretary-General's preliminary draft (See E/CN. 4/928, pp. 5–6). In its study (E/CN. 4/906), the Secretary-General assumes that the terms “war crimes” and “war criminals” are not used stricto sensu.
23 Paragraph 5.
24 Paragraph 6.
25 The mention of these two resolutions was objected to by some representatives on the ground that General Assembly resolutions had no binding force and were not therefore sources of international law. They were not mentioned in the draft prepared by the Secretary-General and were added by the joint working group.
26 Australia, Canada, New Zealand, Portugal, United Kingdom and United States of America.
27 Afghanistan, Argentina, Belgium, Brazil, China, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Honduras, Ireland, Italy, Japan, Luxembourg, Mexico, Netherlands, Nicaragua, Norway, Peru, Spain, Sweden, Uruguay, Venezuela. It should be noted that El Salvador and Honduras voted against the Convention as a whole, at the General Assembly.
28 Such as Cuba's. Sec U.N. Doc. A/7174, p. 13.
29 See above, n. 22.
30 See, J. Y. Dautricourt, in the already mentioned special issue of the Revue Internationale de Droit Pénal, p. 464. In their replies to the questionnaire prepared by Professor Graven, Herzog (p. 498 ff.), Jescheck (p. 514) and Maktos (p. 529) did not favour the mention of crimes against peace in the Convention. Professor Graven, in his capacity as chairman of the International Association of Penal Law, suggested before the Commission on Human Rights leaving out crimes against peace, for practical and realistic reasons (p. 623). Glaser (p. 472), Outrata (p. 537), Roling (p. 545) and Yotis (p. 584) deemed it necessary to include crimes against peace, while Sawicki (p. 553), sharing this view, accepted their exclusion for practical reasons.
31 E/CN. 4/L.917. Greece (see U.N. Doc. A/7174, p. 19) does not consider the non-applicability of statutory limitation to war crimes and crimes against humanity as a principle of international law.
32 For the details of the vote, see Report of the Third Committee, U.N. Doc. A/7342. The additional article was seen by the majority as being incompatible with articles I and IV. Some delegations were ready to depart from the principle that penal law has no retroactive effect and, because of the “particularly hateful nature of the crimes dealt with”—in the words of the Belgian representative (U.N. Doc. A/PV. 1727, p. 6)—to accept a retroactive effect which would rule out any statutory limitation not yet in force, but could not agree to retroactivity when statutory limitation had already taken effect.
33 E/CN. 4/906, pp. 111–112.
34 Ibid. 115.
35 The Council of Europe's approach is similar to that of the Secretary-General's study. See Report on Statutory Limitation as applicable to crimes against humanity, Council of Europe, Doc. 1868.
36 This paragraph was intended to eliminate any doubt regarding the legality of the judgments of the Nürnberg and Tokyo tribunals. The provision would ensure that if in the future crimes should be perpetrated similar to those punished in Nürnberg, “they would be punished in accordance with the same principles” (U.N. Doc. A/4625, para. 16).
37 The European Commission of Human Rights made it clear that article 7 does not affect the legislation enacted at the end of the Second World War and “is in no way intended as a legal or moral condemnation of such legislation” (Documents and Decisions 1955–1957, The Hague, 1959, p. 241).
37a U.N. Doc. E/CN. 4/SR. 921, pp. 6–7.
37b U.N. Doc. E/CN. 4/SR. 919, pp. 11.–12. Justice Cohn proposed to define war crimes as “wilful killings not justified by military necessity and carried out unlawfully and wantonly” and crimes against humanity as “killings directed against a group of persons because of their race, religion, language, ethnic origin or political or other affiliation”. The working group of the Commission on Human Rights proposed to define war crimes as “acts of a grave nature committed in violation of the laws or customs of war”. Murder, torture and inhuman treatment, including enslavement and forced medical or scientific experimentation, were particularly mentioned.
38 The text as proposed by the joint working group differed from the Secretary-General's draft—based on the Charter of the Nürnberg Tribunal and the Convention on Genocide—and followed, in general, the draft of the Commission on Human Right's working group, which did not submit an agreed single text but three alternatives (See U.N. Doc. E/CN. 4/L.943).
39 U.N. Doc. A/C. 3/L. 1561, para. 2.
40 “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 connexion with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated” (article 6, paragraph (c)).
41 “…any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.” For the conditions in which the acts enumerated become acts of genocide, see Robinson, N., The Genocide Convention (New York, 1960) 57 ff.Google Scholar
42 U.N. Doc. A/C. 3/L. 1567.
43 Proposed in the joint working group by Lebanon and the United Arab Republic and adopted by a vote of nine to one with six abstentions. Arab delegations in the Third Committee made it clear that in their view this phrase was intended against Israel.
44 Comment of the Government of Chile, U.N. Doc. A/7174, p. 9.
45 21 votes to 11, with 55 abstentions.
46 Robinson, op. cit., 70.
47 The Draft Code of Offences against the Peace and Security of Mankind, prepared by the International Law Commission, does not request the incitement to be “public”.
48 The Stangl, Rauff and Eklisele cases are examples of the incidence of the matter of extradition on the question of punishment of war criminals. (On the Stangl case, see Blum, Y. Z., Beaiot Hasgara Beparashat Stangl, in Gesher, 1(50)).Google Scholar Germany complained, in a note to the Secretary-General, that its efforts to punish war criminals were barred by the rules on extradition. See U.N. Doc. E/CN. 4/906, p. 120, note 50.
49 The Convention on Genocide used the phrase “in accordance with their respective Constitutions”, which engendered difficult problems.
50 A similar proposal submitted by the U.S.S.R. was rejected by the joint working group.
51 U.N. Doc. E/CN. 4/928, p. 2.
52 This is the system of the Convention on the Elimination of all Forms of Racial Discrimination.
53 See U.N. Doc. E/CN. 4/906, paragraphs 101–160; see, also, the above-mentioned issue of Revue Internationale de Droit Pénal; also, Consultative Assembly of the Council of Europe, Doc. 1868.
54 The delegate of Honduras in the General Assembly. See U.N. Doc. A/PV. 1727, pp. 13–15.
55 Ibid. 16.
56 Ibid. 21–27.
57 Ibid. 27–30. Also A/C. 3/L. 1503, pp. 19–20.
58 Ibid. 43–50.
59 Ibid. 51.
60 Ibid. 56.
61 Ibid.. 61–62. One might note here the stand of Chile in the well-known case of the Nazi Rauff.
62 Ibid. 56–57.
63 Ibid. 62.
64 Ibid. 63–65.
65 Ibid. 65.
66 Ibid. 66.
67 Ibid.. 68–70.
68 A/C3/SR. 1573, pp. 6–7.
69 Ibid. 8.
70 Ibid. 11–12.
71 Ibid. 52–55.
72 Ibid. 58–61.
73 U.N. Doc. A/8174/Add. 3, pp. 3–4.
74 Ibid.
75 U.N. Doc. E/CN. 4/Sr. 919, pp. 11–12. In an interview with Ma'ariv, on 13 December 1968, Justice Cohn indicated his doubts that States will be ready to sign or ratify the Convention, in view of the broadening of its scope.
76 For the authorized translation into English, see 4 L.S.I. 101.
77 For the authorized translation into English, see 4 L.S.I. 154.
78 Explanatory note in (5710) 36 Hatza'ot Hok 119.
79 “Crimes against the Jewish people” means any of the following acts, committed with intent to destroy the Jewish people in whole or in part: (1) killing Jews; (2) causing serious bodily or mental harm to Jews; (3) placing Jews in living conditions calculated to bring about their physical destruction; (4) imposing measures intended to prevent births among Jews; (5) forcibly transferring Jewish children to another national or religious group; (6) destroying or desecrating Jewish religious or cultural assets or values; (7) inciting to hatred of Jews.
80 17 L.S.I. 169.
81 (5723) Hatza'ot Hok 350.
82 20 L.S.I. 8.
83 (5726) Hatza'ot Hok, 66.
84 On the application of international law by Israeli tribunals, see Feinberg, , Omanot Declarativiot Veomanot Constitutiviot Bemishpat Habeinleumi, in (1968) 24 HaPraklit. Google Scholar
