Statutory limitation of crimes under international law: lessons taken from the prosecution of nazi criminals in Germany after 1945 and the new "Demjanjuk case law"

Abstract

Taken from the historical perspective, the article primarily examines the issue of (non-) applicability of statutes of limitation to crimes under international law, both from the perspective of the international and national law. Speaking in more detail, this paper looks at the lengthy and variable process of dealing with Nazi criminals after the WWII. It focuses especially on the prosecution of Nazi criminals in (West) Germany, which strictly adhered to application of laws of domestic provenance. Thus, among other principal challenges, the prosecuting officers (as well as the courts and the legislators) had to deal with the issue of the statute of limitation in cases of crimes, which were (as time passed by) often perpetrated several decades earlier. This approach stood in contrast to the position of the international criminal law, which generally provides for the non-applicability of the statutory limitation to crimes under international law. This topic is still actual as we may recently observe in Germany perhaps the last attempts of the prosecuting authorities to bring the deemed perpetrators of the Nazi crimes before the courts. Not only in the well covered John Demjanjuk case we could witness an attempt of the German courts to overcome the statutory limitations through a new interpretative approach to the institute of accessory to murder under the German Criminal Code. However, this shift in the German case law has not been confirmed by higher courts yet and is sometimes also subjected to criticism by legal scholars.