Crime
against humanity is not subject to statutory limitation
The Supreme Court
of Argentina, in a 5-3 vote, held that crimes against humanity, including
genocide, torture, executions and forced disappearances, are not subject
to statutes of limitation.
Enrique Lautaro
Arancibia Clavel ("Arancibia Clavel") was convicted by an
Argentine federal court (Tribunal Oral Federal n16) of homicide by use
of explosives and for participation in a criminal association, the group
DINA Exterior ("DINA"), a secret police force under the Pinochet
regime. DINA operated under Chile's Director of National Intelligence
both within Chile and Argentina. Members of DINA engaged in kidnapping,
murder, torture and forced disappearance of those considered to be political
opponents. Arancibia Clavel was accused of being involved, inter alia,
in the car-bombing which killed the Chilean General Carlos Prats and
his wife, Sofia Cuthbert, in Buenos Aires in 1974. The Argentine Criminal
Court of Appeals (la Cámara Nacional de Casación Penal)
declared that the criminal association sentence for participating in
DINA was barred by statutory limitations. The representative of the
government of Chile appealed the decision of the Criminal Court of Appeals
to the Supreme Court of Argentina.
The Supreme Court
of Argentina ("the Court") found that the crimes of the accused
have been considered crimes against humanity since the end of World
War II, as reflected in the Universal Declaration of Human Rights, among
other international human rights instruments.
The Court also observed
that such crimes constitute crimes against humanity in accordance with
Article 7 of the Rome Statute.
The Court found
that Arancibia Clavel's participation in DINA came within the scope
of Article 25 of the Rome Statute concerning individual criminal responsibility
for crimes against humanity. Turning to the question of whether Arancibia
Clavel's participation in DINA was time-barred, the Court concluded
that the relevant law was the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against Humanity.
The Supreme Court
noted that the Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes Against Humanity became part of the Argentine
constitution in 2003 by means of Argentine law no. 25.778. The Court
also observed that the notion that such crimes were not subject to statutory
limitations was part of customary international law even before the
ratification of the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity in 1968. Therefore
the Court concluded that holding Arrancibia Clavel criminally liable
for such crimes would not result in a retroactive application of the
law.
Finding that such
crimes against humanity were not time-barred, the Court reversed and
remanded the decision to the lower court.
Source:
American Society of International Law (ASIL), New York.
