Thursday, October 30, 2008

International Crimes and Statutes of Limitation

We’ve blogged before on open doctrinal questions that will face the Extraordinary Chambers in the Courts of Cambodia (below right) once they face the merits of the allegations against the former Khmer Rouge defendants in custody. An obvious additional question relates to the applicable statute of limitations, if any, in light of the fact that the ECCC are an exercise of historical justice, whose jurisdiction is limited (pursuant to Article 1 of their constitutive instrument) to crimes committed in 1975-1979 when the Khmer Rouge held power.

The ECCC have jurisdiction over the core international crimes (genocide, crimes against humanity, and war crimes). In addition, Article 3 of the establishing law grants the Chambers jurisdiction over certain domestic crimes that were penalized by the 1956 Code Pénal et Lois Pénales (homicide, torture, and religious persecution), which remained extant—but unenforced—during the Khmer Rouge era. Pursuant to the latter provisions, the ECCC is essentially charged with interpreting “dead law,” which has not been applied for a generation.

A multilateral treaty promulgated in 1968, the U.N. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, declared that international crimes are not subject to statutes of limitation. The operative section provides:
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 … the “grave breaches” enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
(b) 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, 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, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and 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.

This treaty entered into force in 1970, prior to the Khmer Rouge's ascent to power. But it has only 52 members at the moment.

A similar treaty within the Council of Europe, dating from 1974, abolishes statutes of limitation for genocide, grave breaches of the Geneva Conventions, “any comparable violations of the laws of war,” and “any other violation of a rule of custom of international law which may hereafter be established and which the Contracting State concerned considers … as being of a comparable nature.” The treaty applies only to offenses committed after its entry into force or to prior crimes whose statutory limitations have not yet expired. This treaty entered into force in 2003, although has only 4 ratifications (Belgium (2003), Netherlands (1981), Romania (2000), and Ukraine (2008)) and 2 additional signatories (Bosnia-Herzegovina (2008) and France (1974)).

These treaties might suggest a customary law basis for overcoming any defense of prescription by the Khmer Rouge defendants with respect to the international crimes for which they have been charged. They do not, however, expressly apply to any domestic crimes, even where such crimes provide the predicate act for international crimes. Accordingly, Article 3 of the law establishing the ECCC extended for an additional 30 years the applicable statute of limitations for these crimes:

The statute of limitations set forth in the 1956 Penal Code shall be extended for an additional 30 years for the crimes enumerated above, which are within the jurisdiction of the Extraordinary Chambers.

Under the old Cambodia Penal Code, felonies (designated as crimes) carried a 10-year statute of limitation from the date of commission as compared to misdemeanors (délits), which carried a 5-year statute of limitation. Khmer Rouge defendants will undoubtedly advance arguments that any effort to resuscitate penal liability for these domestic crimes, which lapsed due to the passage of time, constitutes impermissible ex post facto legislation.

In connection with domestic prosecutions for World War II defendants, the European Court of Human Rights has addressed efforts to abolish statutes of limitation for international crimes. In 1964, France enacted a law (No. 64-1326 of Dec. 26, 1964) providing that crimes against humanity, as discussed in and defined by General Assembly Resolution 3 (concerning the extradition and punishment of WWII war criminals) and the Nuremberg Charter, “are imprescriptible by their nature.” In the 1980s and 90s, France prosecuted several World War II defendants—including Paul Touvier (left) (photo credit) and Maurice Papon (right) (photo credit)—for crimes against humanity in reliance on this legislation.
Both Touvier and Papon challenged their convictions before the ECHR on the grounds that they ran afoul of Article 7 of the European Convention on Human Rights, which provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.

In both cases, the ECHR ruled that the French law fell within the exception to retroactivity recognized in sub-section 2 above, as the Nuremberg Charter did not contain a period of prescription for its crimes.

Because this analysis depends on the prior criminalization of the crimes at Nuremberg, under a constitutive charter with no reference to an applicable statute of limitations, it will be of only limited use to Khmer Rouge defendants who might challenge any counts brought pursuant to domestic law.

Under U.S. law (Stoger v. California, 539 U.S. 607 (2003)), a law extending a criminal statute of limitations after the existing limitations period has expired violates the U.S. Constitution's ex post facto clause when it is applied to revive a previously time-barred prosecution. Such a statute creates the kind of “manifestly unjust and oppressive” retroactive effects that the ex post facto clause seeks to avoid, because it essentially aggravates a crime as compared to when it was committed. A vigorous dissent from the Court’s conservative wing in Stoger argued that the California statute should have been left standing because:
  1. it did not criminalize previously innocent conduct,

  2. the punishment was limited to what could be assigned at the time the offense was committed so there was no aggravation of the offense,

  3. it did not alter the government’s burden vis-à-vis the elements of the crime, and

  4. Any concern about stale evidence can be dealt with by the jury and the applicable burden of proof.
Assuming defendants are charged with these domestic crimes, the ECCC will have to determine the legality of reviving criminal liability. It remains to be seen whether the ECCC will consider itself subject to a robust ex post facto prohibition (the International Covenant on Civil and Political Rights is loosely incorporated by reference into the Cambodian Constitution) or whether it will fashion a generous tolling regime in light of the existence of repression, war, instability, amnesia, fear, etc.….

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