1 For example, “from 8 May 1945 to 1 January 1968, 77,044 investigations of persons suspected of major Hitler-era crimes were conducted by the West German Authorities. A total of 6,192 were sentenced during this period, 12 of them to the death penalty, 90 to life imprisonment, 5,975 to shorter terms of imprisonment and 114 to pay fines. At present, 19,933 cases of persons suspected of National Socialist crimes are before the West German Courts.” Quoted in Press Release, Federal Republic of Germany Information Center, New York, “Statute of Limitations—Controversial Problem of German Policy,” Oct. 15, 1968.

2 For instance in Greece: ”… pursuant to Greek national legislation all war crimes are subject to a twenty-year statutory limitation. As a consequence, war criminals of the Second World War can no longer be prosecuted in Greece.” U.N. Doc. A/7174, p. 19. In the following states, the ordinary statutory limitations are apparently applicable to war crimes and to persons guilty of crimes against humanity: Cambodia, CamerOon, Japan, Malta, Morocco, Norway, Spain, Sweden, Turkey, Venezuela. U.N. Doc. E/CN.4/906, p. 53.

3 Statutory limitation, or prescription, in criminal law is not a universal concept and it should be contrasted with the practice of common law countries, where the principle of setting a time limit for the prosecution of crime is generally not recognized. See U.N. Doc. A/7174/Add.l-3 for a description of the limitation periods that apply in several states; e.g., in Italy, “this [statutory] limitation does not apply to serious offences which are subject to the penalty of ergastolo [rigorous imprisonment for life].'

4 E.g., the Declaration of St. James of 1942, the Moscow Declaration of 1943, the Potsdam Agreement of 1945, the Charters of the International Military Tribunals of Nürnberg and the Far East, the 1948 Convention on the Prevention and Punishment of the -Crime of Genocide, and the Geneva Conventions of 1949 all called for the punishment of such criminals.

5 The representative of France noted “that silence might be interpreted as encouraging States to apply their domestic legislation to war crimes and crimes against humanity, thus creating a situation unsatisfactory to the international community.” U.N. Doc. E/CN.4/SR/921, p. 4.

6 For: Algeria, Bulgaria, Burma, Byelorussian S.S.R., 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, Romania, Rwanda, Saudi Arabia, Senegal, Singapore, Southern Yemen, Sudan, Syria, Togo, Tunisia, Ukrainian S.S.R., U.S.S.R., United Arab Republic, United Republic of Tanzania, Upper Volta, Yugoslavia and Zambia. Against: Australia, El Salvador, Honduras, Portugal, South Africa, United Kingdom, United States. Abstentions: 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, Netherlands, New Zealand, Nicaragua, Norway, Panama, Peru, Spain, Sweden, Thailand, Turkey, Uruguay and Venezuela.

7 Prior to this convention, sixteen international instruments had been adopted in the field of human rights by the United Nations, and only in the following three cases were dissenting votes cast against the adoption of such instruments: The Convention on the Traffic in Persons, the Convention on the Right of Correction, and the Optional Protocol to the International Covenants on Human Rights. For details of votes cast, see U.N. Doc. A/CONF.32/15.

8 Bundesgesetzblatt, Part I, p. 315. See U.N. Doc. E/CN.4/906, pp. 71-77, for information provided to the Secretary General by the Federal Republic of Germany concerning its legislation relating to the applicability of statutory limitations to war crimes and crimes against peace and humanity.

9 “The Law concerning the Calculation of Periods for Criminal Prosecution (Federal Law Gazette, Part I, p. 315), passed on 13 April 1965, provides that the period from 8 May 1945 to 31 Dec. 1949, shall not be taken into consideration when calculating the periods of limitation for crimes which would carry a penalty of life imprisonment with hard labour. This means that the period for the prosecution of any crimes which may not be known to the German authorities can on no account expire before 1 January 1970.” U.N. Doc. E/CN.4/927, p. 35.

10 As amended on Aug. 25, 1953.

11 Much has been written on the application of statutory limitation to domesticlaws in Europe. See, e.g., J. Graven, “Les crimes contre l'humanité peuvent-ils bénéficier de la prescription?” 81 Revue pénale Suisse 113 (1965); J.-B. Herzog, “Etudedes lois - concemant la prescription des crimes contre rhumanité,” [1965] Revue de Science criminelle et de Droit pénal compart 337; S. Glaser, “Quelques observations sur la prescription en matiére de la criminalité de guerre,” 45 Revue de Droit pénal et de Criminologie 511 (1964-65).

12 See German Criminal Code, Arts. 66 and 67.

13 U.N. Doc. E/CN.4/906, p. 73.

14 Ibid., p. 75.

15 Ibid., p. 72.

16 On July 10, 1969.

17 U.N. Doc. E/CN.4/IV733.

18 In accordance with Rule 6, par. 3, of the Rules of Procedure of the functional commissions of the Economic and Social Council.

19 U.N. Doc. E/CN.4/855. The item proposed by Poland and orally amended by- France to add the words: “and of persons who have committed crimes against humanity,” at the end of its title, was adopted by the Committee without objection.

20 U.N. Doc. E/CN.4/L/733, Rev. 1.

21 See the views expressed by The Netherlands, U.N. Doc. E/CN.4/SR/873, p. 7; Austria, Doc. E/CN.4/SR/873, p. 8; Sweden, Doc. E/CN.4/SR/873, p. 13; Philippines, Doc. E/CN.4/SR/873, p. 15; and France, Doc. E/CN.4/SR/873, p. 9.

22 See Official Records of the Economic and Social Council, Thirty-Ninth Session, Supp. No. 8 (E/4024), Ch. XX, par. 567.

23 By Res. 3 (XXI) of the Commission on Human Rights.

24 U.N. Doc. E/CN.4/906.

25 By Res. 1158 (XLI) of Aug. 5, 1966.

26 U.N. Doc. A/6813.

27 See Report of the Joint Working Group of the Third and Sixth Committees U.N. Doc. A/C.3/L/1503.

28 Res. 2391 (XXIII).

29 Whether the convention “established” a new principle of international law or “affirmed” an already existing principle was strenuously debated before the Commission on Human Rights and the Third Committee of the General Assembly. See below.

30 Principally the East European states; e.g., the representative of Poland said: “Most delegations had been of the opinion that the principle of the non-applicability of statutes of limitation to war crimes had already been recognized in internationallaw.” U.N. Doc. E/CN.4/SR/873, p. 5. The representative of the U.S.S.R. stated: ”… the Soviet Union considered that the Convention, when adopted, would not make new law, but merely reaffirm an existing principle of international law.” U.N. Doc. E/CN.4/SR/931, p. 6.

31 In this regard see the statement by the representative of the Ukrainian S.S.R. U.N. Doc. E/CN.4/873, p. 10.

32 The representative of Sweden noted that the main authors of these instruments had been countries whose legislation made no provision for statutory limitation. See U.N. Doc. E/CN.4/SR/873, p. 12.

33 See U.N. Doc. E/CN.4/SR/875, p. 16, for the statement by the representative of Czechoslovakia.

34 These states included Austria, France, The Netherlands, Philippines and Sweden. See U.N. Docs. E/CN.4/SR/873 and E/CN.4/SR/875.

35 E.g., Professor Ermacora, the representative of Austria, noted: “The conclusion that the period of limitation did not exist in international law could not be justified on the sole ground that such period was not expressly mentioned in the relevant international instrument.” U.N. Doc. E/CN.4/SR/873, p. 8.

36 The representative of The Netherlands said: “There was no international codification and no unambiguous answer to the question whether international law, as it currently existed, recognized a period of limitation for war crimes and crimes against humanity,” in quoting from a statement of the Co-ordinating Board of Jewish Organizations (U.N. Doc. E /CN/NGO/133). U.N. Doc. E/CN.4/SR/873, p. 7.

37 By Professor Ermacora, See note 35 above.

38 Austria and the Philippines. See U.N. Doc. E/CN.4/SR/873, pp. 8 and 15.

39 E.g., in the United Kingdom and in most Commonwealth countries. See below.

40 See U.N. Doc. E/CN.4/SR/873, p. 15, for the statement by the representative of the Philippines.

41 For an excellent description of the various purposes of statutory limitation, see H. Mouzzami, La prescription de Faction publique en droit français et en droit Suisse, Etude de droit Comparé (Montreux, 1952).

42 See U.N. Doc. E/CN.4/906, p. 91, quoted from ibid.

43 See U.N. Doc. E/CN.4/SR/943, p. 6, for the statement by Professor Jean Graven, representing the International Penal Law Association.

44 See 2 Stephen, History of the Criminal Law of England 1, 2 (1883); Note, “The Statute of Limitations in Criminal Law: A Penetrable Barrier to Prosecution,” 102 U. of Penn. Law Rev. 630 (1954).

45 See report of the Secretary General on measures taken by governments to prevent the application of statutory limitation to war crimes and crimes against humanity. U.N. Doc. E/CN.4/927 and Add. 1-6.

46 U.N. Doc. E/CN.4/SR/943, p. 9. See also Note, “A Time Limit for Prosecution of War Crimes?”, 14 Int. & Comp. Law Q. 627, 628 (1965). “The term is set when, through the passage of time—juridically the length of the interval is made to depend upon the gravity of the crime—the injuries inflicted upon the community by the crime are healed and the act itself has ceased to imperil the life of the community.“

47 See, generally, , Graven, J., “Les crimes contre Hiumanité peuvent-ils bénéficier de la prescription?”, 81 Revue pénale Suisse 113 (1965)Google Scholar; J.-B. Herzog, “Etude des lois concernant la prescription des crimes contre l'humanité,” [1965] Revue de Science criminelle et de Droit pénal comparé 337; S., Glaser, “Quelques observations sur la prescription en matière de criminalité de guerre,” 45 Revue de Droit penal et de Criminologie 511 (1964-65)Google Scholar; G. Levasseur, , “Les crimes contre lTiumanite et le probleme de leur prescription,” 93 Journal du Droit. Int. 259 (1966)Google Scholar.

48 E.g., Beccaria, Bentham, Garafallo, Henke and Graven. See U.N. Doc. E/CN.4/ 906, pp. 84-87, for a summary of their views on this subject.

49 J. Graven, loc. cit., note 47 above, at 132.

50 For details of this legislation see U.N. Doc. E/CN.4/906, pp. 53-82.

51 See Nazi Conspiracy and Aggression: Opinion and Judgment 56 (1947).

52 E.g., the United States, Belgium, France and New Zealand. See U.N. Doc. A/C.3/ SR/1565, pp. 3, 9, 10 and 45.

53 See ibid., p. 10.

54 Ibid., p. 5.

55 E.g., see the statements of Dahomey in particular, U.N. Doc. A/C.3/SR/1567, p. 8; and Iraq, Doc. A/C.3/SR/1565, p. 7; Syria, ibid., p. 4; and Morocco, ibid., p. 9.

56 By Cuba, U.N. Doc. A/C.3/SR/1565, pp. 2, 3.

57 By Cyprus, U.N. Doc. A/C.3/SR/1566, p. 2.

58 By Italy, U.N. Doc. A/C.3/SR/1569, p. 4.

59 By France, U.N. Doc. E/CN.4/SR/921, p. 5.

60 By France, U.N. Doc. A/C.3/SR/1548, p. 478.

61 By Cyprus, U.N. Doc. A/C.3/SR/1516, p. 271.

62 A considerable widening of the scope of the convention was proposed by the representative of Saudi Arabia who said the convention should include provisions enabling persons accused of such crimes to be tried by a tribunal composed of independent judges. The crimes committed by the defeated states, and the right of asylum of persons accused of war crimes and crimes against humanity would not be prejudiced where the charge against them was open to substantial doubt. In the opinion of most delegates, these suggestions were beyond the scope of the convention and were included in a proposed optional protocol to the convention.

63 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 6 U.S.T. 3114, T.I.A.S., No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 6 U.S.T. 3217, T.I.A.S., No. 3363, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316, T.I.A.S., No. 3364, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3516, T.I.A.S., No. 3365, 75 U.N.T.S. 287.

64 E.g., the representatives of Israel and the Phihppines. See U.N. Doc. E/CN.4/ SR/919, pp. 11, 16.

65 On behalf of France, Mexico, The Netherlands and the United States.

66 The strongest opponents of the four-Power proposal were Bulgaria, India, Poland and the Ukrainian S.S.R.

67 The representative of Honduras said that in his country “no crime was exEmpt from statutory limitation and no law had retroactive effect except in criminal matters when it introduced a change in favour of the accused.” U.N. Doc. A/C.3/SR/1568, p. 8.

68 U.N. Doc. A/C.3/L/1563. This Norwegian amendment was subsequently withdrawn.

69 See p. 481.

70 As to crimes against humanity, see Schwelb, E., “Crimes against Humanity,” 23 Brit. Yr. Bk. Int. Law 178 (1946)Google Scholar; J. Graven, , “Les crimes contre l'humanité,” 76 Hague Academy, Recueil des Cours 433 (1950)Google Scholar; E. Aronéanu, , “Le Crime contre l'humanité,” 13 Nouvelle Revue de Droit International Privé 369 (1946)Google Scholar.

71 Consultative Assembly of the Council of Europe, Report on Statutory Limitation as Applicable to Crimes Against Humanity (Rapporteur: Mr. Pierson), Doc. 1968, p. 12.

72 The Convention on the Prevention and Punishment of Genocide, Art. I, also provides that this crime “whether committed in time of peace or in time of war, is a crime under international law, which the ‘Contracting Parties’ undertake to prevent and punish.“

73 Charter of the International Military Tribunal of Nürnberg, Art. 6 ( a ) .

74 Ibid., par. (b).

75 Ibid., par. (c).

76 See U.N. Doc. A/C.3/L/1503, p. 7.

77 E.g., the representative of Iraq said: ”… they included violations of the laws and conventions of war, in particular the use of napalm, which had inflicted horrible burns on Syrian soldiers and peasants during the recent military operations, the murder and deportation of civilians, the pillaging of public and private property, the destruction of towns and villages and other inhuman acts of terrorism, and they should feature in the list in Article I. They were crimes which had characterized the history of Israel and ranged from the expulsion and genocide of the Palestine Arabs to the butchery which had time and again steeped the region in blood.” U.N. Doc. A/C.3/ SR/1523, p. 319.

78 See U.N. Doc. A/6813, p. 16, par. 25, for the statement of the representative of the United Arab Republic.

79 France, U.N. Doc. A/C.3/SR/I565, pp. 4-5, and Madagascar. See Doc. A/ 7174/Add.2, p. 2. ”… Article I (b) of the draft gives a vague definition of ‘crimes against humanity,’ followed by an enumeration which is indicative, not limitative. The wording is not based on a sound conception of law and does not meet the imperative need, recognized in all democratic countries, to define crimes—especially crimes of such a grave nature—in the light of strict and objective constitutive factors.“

80 France, he. cit. note 79 above.

81 See U.N. Doc. A/C.3/SR/1548, p. 479, for the statement of the representative of Tanzania: “he must in all sincerity mention the fact of his neutrality towards the part dealing with crimes committed by Europeans against Europeans during the Second World War. On the other hand, he regarded it as particularly important to include among crimes against humanity certain things that were now happening in countries like South Africa, Southern Rhodesia and the Portuguese Territories of Africa.“

82 See U.N. Doc. A/C.3/SR/1547, p. 473, for the statement of the representative of Somalia.

83 U.N. Doc. A/C.3/L/1561, par. 2.

84 E.g., New Zealand and France. See U.N. Docs. A/C.3/SR/1568, p. 4, and A/ C.3/SR/1565, p. 5.

85 By Norway, Doc. A/C.3/SR/1565, p. 7.

86 For the statements made, in turn, by the U.S.S.R., the Ukrainian S.S.R., Byelorussian S.S.R., and Poland, see U.N. Docs. A/C.3/SR/1566, p. 6; A/C.3/SR/1565, p. 8; A/C.3/SR/1567, pp. 8, and 2, respectively.

87 See the statement by Mali, U.N. Doc. A/C.3/SR/1565, p. 11.

88 By the United Kingdom, Chile and France.

89 See U.N. Doc. A/C.3/SR/1564, p. 2, for a statement by the United Kingdom.

90 See U.N. Doc. A/7174/Add. 1, pp. 2, 3, for the comments of the United King dom Government on the draft convention prepared by the Joint Working Group.

91 By Chile, see U.N. Doc. A/7174, p. 10.

92 In addition to the amendments mentioned above, Pakistan proposed an amendment (U.N. Doc. A/C.3/L/1560) to par. (b) of Art. I, to add the words “or on religious grounds” after “armed attack or occupation.” The amendment was later withdrawn.

93 U.N. Doc. A/C.3/L/1564/Rev. 1.

94 U.N. Doc. A/C.3/SR/1564, pp. 2-3.

95 U.N. Doc. A/C.3/SR/1566, p. 2.

96 Those states included Italy, Israel and the United States, U.N. Doc. A/C.3/SR/ 1565, p. 10.

97 U.N. Doc. A/C.3/SR/1566, p. 5.

98 U.N. Doc. A/C.3/SR/1566, p. 3.

99 U.N. Doc. A/C.3/SR/1563, p. 8. This proposal was adopted by a vote of 30 in favor, with 2 against, and 57 abstentions.

100 By Res. 177 (II) of Nov. 21, 1947.

101 Principle II of the Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal, prepared by the International Law Commission. See 1950 I.L.C. Yearbook (II), Doc. A/1316, p. 374.

102 Art. II prepared by the Joint Working Group read as follows: “If any of the crimes mentioned in Article I is committed the provisions of this Convention shall also apply to complicity in such crime and to direct incitement or conspiracy to commit it.

103 See U.N. Doc. A/C.3/SR/1569, p. 7.

104 See U.N. Doc. A/C.3/SR/1570, p. 7.

105 Ibid., p. 7.

106 Ibid., p. 5.

107 See, generally, , Neumann, R. G., “Neutral States and the Extradition of War Criminals,” 45 A.J.I.L. 495 (1951)Google Scholar; M. R. García-Mora, , “Crimes Against Humanity and the Principle of Nonextradition of Political Offenders,” 62 Michigan Law Rev. 927 (1964)Google Scholar.

108 See statement by Chile on the draft convention prepared by the Joint Working Group, U.N. Doc. A/7174, p. 11.

109 U.N. Doc. A/7342, p. 15.

110 U.N. Doc. A/C.3/SR/1570, p. 6.

111 See U.N. Doc. E/CN.4/928, p. 14, for commentary on the preliminary draft convention prepared by the Secretary General.

112 See U.N. Doc. E/CN.4/906, pp. 63-82.

113 Ibid., p. 73.

114 U.N. Doc. A/PV/1737, p. 48.

115 See U.N. Doc. A/C.3/SR/1567, p. 3.

116 Ibid., p. 7.

117 The Norwegian representative indicated that his government had taken steps to exclude various serious crimes committed during the last two years of the Second World War from the principle of statutory limitation. See U.N. Doc. A/C.3/SR/1567, p. 3.

118 See U.N. Doc. A/7174, p. 19.

119 E.g., Belgium, Denmark, Greece, Italy and Sweden. For their statements on this proposal, see U.N. Docs. A/C.3/SR/1563 and A/C.3/SR/1571.

120 See statement by Sweden, U.N. Doc. A/C.3/SR/1571, p. 3.

121 E.g., the Sudan and Dahomey. See statements made by them in U.N. Doc. A/C.3/SR/1571.

122 E.g., the Ukrainian S.S.R., U.S.S.R., Poland and Byelorussian S.S.R. all expressed their opposition to this amendment. See U.N. Doc. A/C.3/SR/1571.

123 The Preamble was adopted by a vote of 58 to 6, with 25 abstentions.

124 See pp. 486-487 above for discussion of this resolution.

125 Res. 170 (II) was adopted on Oct. 31, 1947, at the Second Session of the General Assembly, and after reaffirming Res. 3 (I) continues as follows: “Recommends Members of the United Nations inter alia, which desire the surrender of alleged war criminals or traitors … by other Members in whose jurisdiction they are believed to be, to request such surrender as sOon as possible and to support their request with sufficient evidence to establish that a reasonable prima facie case exists as to identity and guilt.“

126 See pp. 486-487 above for discussion of this resolution.

127 See General Assembly, 21st Sess., Official Records, Annexes, Agenda item 23 (A/6300/Rev.l) Ch. V, for the Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples relating to the Territories under Portuguese Administration.

128 See U.N. Doc. A/6813, p. 4. This proposal was adopted in the Joint Working Group by 8 votes to 2, with 4 abstentions.

129 gee ibid., p. 9, in connection with the vote on Art. I.

130 See U.N. Doc. A/C.3/SR/1574, p. 473.

131 See ibid., p. 474.

132 See U.N. Doc. A/C.3/SR/1549, p. 489.

133 France, for instance, maintained that “State policies could not be equated with crimes and that those resolutions were not legally binding on States.” See U.N. Doc. A/C.3/SR/1548, p. 478.

134 U.N. Doc. A/C.3/SR/1549, p. 484.

135 The delegate of France held a similar view. See U.N. Doc. A/C.3/SR/1548, p. 478.

136 For instance, the representative of Tanzania stated, “the whole convention was based on political considerations.” See U.N. Doc. A/C.3/SR/1548, p. 479.

137 See, for example, U.N. Doc. A/PV/1727, the Provisional Verbatim Record of the General Assembly, for statements made on this issue by the following representatives: Poland, p. 8, Bulgaria, p. 21, Hungary, p. 41, and the U.S.S.R., p. 52.

138 For instance, the U. S. representative said that its delegation would “resist efforts to use the present item as a pretext for politically motivated and specious attacks on a State, the Federal Republic of Germany.” See U.N. Doc. A/C.3/SR/1517, p. 5.

139 See p. 477 above. 58 states voted in favor, 7 against, with 36 abstentions.

140 See U.N. Doc. A/PV/1727, for the verbatim record of speeches made by representatives of states concerning the adoption of the convention.

141 See Lerner, N., “The Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes Against Humanity,” 4 Israel Law Review 512 (1969)Google Scholar.

142 See Art. 11 (2) of the Universal Declaration of Human Rights and Art. 15 of the International Covenant on Civil and Political Rights. It should also be noted that neither the Convention on the Prevention and Punishment of the Crime of Genocide nor the 1949 Geneva Conventions for the Protection of War Victims provide for retroactive application.

143 The convention entered into force on Nov. 11, 1970. It has been ratified by Bulgaria, Byelorussian S.S.R., Czechoslovakia, Hungary, Mongolia, Poland, Romania, Ukrainian S.S.R., the U.S.S.R., Yugoslavia, and Nigeria. 7 U.N. Monthly Chronicle 99 (No. 11, 1970); 8 ibid. 96 (No. 1, 1971).