Justice delayed, not denied : statutory limitations and human rights crimes
Jan Arno Hessbruegge
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Georgetown journal of international law, Vol. 43, issue 2, 2012, p. 335-385
From the vantage point of morality and sound legal policy, time bars should not apply to the prosecution of human rights crimes or related reparation claims. Under the civil law tradition, however, even the most serious crimes have traditionally been subject to prescription. In common law systems, statutes of limitations have posed a major obstacle to reparation claims based on human rights crimes, including historical wrongs. In the era of the Rome Statute of the International Criminal Court, customary international law has finally progressed to a stage where States may not point to the passage of time to escape their duty to prosecute and punish perpetrators of genocide, crimes against humanity, and war crimes in their own courts. Furthermore, the vast majority of states are obligated under international treaty law to also abolish statutes of limitations for other human rights crimes, in particular torture and extrajudicial killings. This also has repercussions for crimes committed in a more distant past, as international law allows (but does not require) states to abolish domestic statutes of limitations with retroactive effect, even where the prosecution of acts amounting to international crimes had already become time-barred. While justice delayed no longer means justice denied in respect of the prosecution of human rights crimes, not enough thought has been given to whether the same can be said for related reparation claims. This Article demonstrates that the right to an effective remedy under international human rights treaty law renders claims based on genocide, crimes against humanity, and war crimes imprescriptible. Regrettably, state practice does not follow this approach, which has so far prevented the emergence of a norm of customary international law to that effect.