International crimes never die (but their perpetrators age)
OPINION. International crimes have no statute of limitations, but what can be done when their perpetrators, sometimes tried decades after the fact, have become senile, mentally ill, and can no longer understand prosecution? asks Civitas Maxima’s lawyer Alain Werner.
The most striking difference between the prosecution of a common crime – for example, homicide following a bank robbery – and that of an international crime – genocide, war crimes, torture, crimes against humanity – is that for the latter, criminal proceedings are never time-barred.
After a certain number of years, if the person who robbed the bank cannot be found, they can no longer be prosecuted. However, as long as the person suspected of international crimes is alive, they can be prosecuted, even long after the fact.
Crimes that never die
The idea behind this distinction is that international crimes, by their very nature, are of particular gravity, and their prosecution requires this imprescriptibility. In other words, these crimes never die.
For those of us seeking justice for victims of international crimes, this imprescriptibility is our secret weapon.
It has enabled “Nazi hunters” and numerous national prosecutors to continue prosecuting people associated with the crimes of the Third Reich for over 70 years. For example, former Auschwitz accountant Oskar Gröning, born in June 1921 was convicted by a court in Lüneburg, Germany, in June 2015 at the age of 94, having been found guilty of complicity in the murder of at least 300,000 Jews. He died in 2018 before serving his sentence.
In addition to the trials of former Nazis, several of the most emblematic proceedings of the last three decades have also been made possible by the ability to prosecute them without time limits.
Pinochet, Hissène Habré, Duch
Augusto Pinochet was 83 years old when he was arrested in London in 1998 on charges of torture, some of which happened almost 25 years ago, at the time of his 1973 coup d’état. According to the Spanish investigations into the case, between 1973 and 1990, Mr. Pinochet was responsible for the torture of approximatively 10 % of his country’s adult population, and for the murder and/or enforced disappearance of over 3,000 people.
His arrest in London was led by the exemplary persistence and documentation efforts spanning over three decades of Juan Garcés, a Spanish lawyer who managed to escape the attack of Pinochet’s men into the presidential palace of La Moneda in 1973.
The imprescriptible nature of international crimes also enabled another exemplary and obstinate lawyer, Reed Brody, to obtain in 2016, alongside Chadian and Senegalese lawyers, the conviction of the former President of Chad, Hissène Habré, whose regime was responsible for the deaths of over 40,000 people. His verdict came more than thirty years after some of the crimes were committed.
This ability to prosecute international crimes over the long term also enabled the United Nations, after years of negotiation with the Cambodian government, to set up the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Penh. This tribunal, made up of Khmer and international judges, tried certain senior members of the Khmer Rouge regime, responsible for the death of a third of its own population between 1975 and 1979. These trials took place between 2009 and 2018, some of them forty years after the crimes were committed.
I’ll never forget my astonishment when I first arrived in Phnom Penh in 2009 as a lawyer for victims in the Duch trial, who was the head of the S-21 or Tuol Sleng concentration camp. I searched for the prison but all I saw was a building that looked more like a hospital or a nursing home, with an ambulance going in and out.
One of the accused, Ieng Sary, “brother number 3” and vice-prime minister of the Khmer Rouge government in charge of foreign affairs, died on March 14, 2013, at the age of 87, before the end of his trial. Nuon Chea, “brother number 2”, considered as Pol Pot’s “dark soul” and the regime’s ideologue, died in August 2019 at age of 93, after taking part to both of his trials. He was sentenced to life imprisonment for crimes against humanity, genocide and other international crimes in the second proceeding.
Nuon Chea stood in the dock alongside Khieu Samphan, the former president of Democratic Kampuchea – the official name of the Khmer Rouge regime. Nuon Chea is still alive today and is 92 old. He was defended in Cambodia by Jacques Vergès, who himself died at the age of 88 in 2013 while still pleading his case.
When dementia makes justice impossible
This legal right to prosecute until their deaths anyone suspected of international crimes comes up against an obstacle: the loss of cognitive faculties of the accused.
For example in the Cambodian trials, proceedings against the only female defendant, Ieng Thirith, were suspended in 2011, as she was suffering from dementia. The former “first lady” of the regime and wife of Ieng Sary died in 2015, aged 83.
Two recent proceedings on the genocide in Rwanda, with diametrically opposed outcomes, illustrated well the complexity of the issue of the inability to try a person accused of international crimes on account of their mental state.
Last year, for example, the Trial Chamber of the United Nations Tribunal for the Prosecution of Persons Responsible for the Rwandan Genocide decided that Félicien Kabuga, the alleged financier of the genocide, was “unfit to participate meaningfully in his trial”, due to Alzheimer’s disease. The same Chamber nevertheless decided to pursue the case through “an alternative procedure of ascertainment which resembles as closely as possible a trial, but without the possibility of conviction”. Such a decision was a first.
Followed by an appeal by both the prosecutors and the defense, the Appeals Chamber handed down its decision in August 2023, confirming that Mr. Kabuga was unfit to stand trial, and ruling that the Trial Chamber had erred in devising this “alternative procedure”.
Imagining other solutions
One of the world’s most wanted fugitives – arrested on May 16, 2020, in the Paris suburb of Asnières-sur-Seine, after 23 years on the run, including a stint in Switzerland – has finally escaped justice. In the specific, he was prosecuted for his support of the Interahamwe Hutu militia and for his responsibility in Radiotélévision des Mille Collines broadcasts calling for genocide. Victims’ associations said they were “appalled” by this decision.
Belgian justice, for its part, took a completely different approach to a similar problematic in proceedings concerning Rwanda. It decided to try Pierre Basabosé, 76 years old, despite his irreversible senile dementia, with the specialized press headlining: “Pierre Basabosé no longer understands anything, but his trial will go ahead”.
Having found him guilty in December 2023 of war crimes and the crime of genocide, the Belgian judges then decided that Mr. Basabosé should be institutionalized. He had been unable to attend his entire trial.
In view of the imprescriptibility of statutes of limitation, longer life expectancy and the growing number of proceedings for international crimes, this situation is bound to recur. It would be advisable – for victims and defendants alike – to harmonize as soon as possible the courts’ practices in dealing with the issue of age-related mental incapacity to stand trials.
The article first appeared in French on Le Temps on the 22nd of April, 2024.
Photo: Khieu Samphan, Trial Chamber 31. Wikimedia Commons.
