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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 carbombing which killed the Chilean General Carlos Prats and his wife, Sofia Cuthbert, in Buenos Aires in 1974. The Argentine Criminal Court of Appeals (la Camara Nacional de Casacion 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.