CRIMES AGAINST HUMANITY AND THE PASSAGE OF TIME

This essay is excerpted from Professor Teitel's recent book "Transitional Justice," available from Oxford University Press. In "Transitional Justice" (Oxford Univ. Press 2000), Professor Teitel explores the recurring dilemma of how regimes should respond to evil past rule: should a successor regime punish the crimes of its predecessor regime and if so, how? This excerpt is derived from Professor Teitel's chapter on Criminal Justice, in which she considers the profound issues arising from the exercise of the state's punishment power in the circumstances of radical political change.

Consider the phenomenon of the timeless prosecution of crimes against humanity. These cases connect regimes, running a political thread in space -- and through time -- perpetuating a sense of ongoing responsibility for past wrongs that is ultimately constructive of the state's enduring political identity. For crimes against humanity are apparently unconstrained by generally applicable jurisdictional principles, such as time limits. There are gaps of close to half a century between both the Nazi and Communist reigns of terror and their successor prosecutions, colliding with our ordinary intuitions about criminal justice's operation.

More than half a century after the events, World War II-related trials persist throughout Europe, Canada and Australia. The pursuit of criminal justice ordinarily declines with the passage of time, reflected in most legal systems' time limits even for the most grave crimes. Only a minority of countries following Anglo-American law fail to limit the prosecution of the most serious crimes over the passage of time. . . . However, at the International level, the dilemma was resolved in the enactment of the United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. . . .

Evidentiary And Political Issues Arising From Government Complicity

The nature of political persecution, in particular, the complicity of the state in this offense, has implications for the paradoxical effects of the passage of time. Systemic persecution challenges evidentiary and jurisdictional assumptions regarding the role of the passage of time.

When the state is itself implicated in the wrongdoing, significant aspects of the offense are often covered up and simply not publicly known at the time of the commission of the acts, only emerging with the passage of time: not only perpetrators' identities but, even more significantly, even the facts and character of the offense itself.

Moreover, the state's implication in these offenses, as well as in the cover-up, increases the likelihood of the inherent politicization of punishment policy. In the World War II-related prosecutions, the political will to prosecute surged, waned, and flowed again with the passage of time. While just after the war, there was considerable Allied interest in justice, the cold war and attendant shift in the political winds eviscerated the impulse to justice.

The passage of time implies regime change that in turn enables justice. Thus, for example, the transition to democracy in the 1980s in Bolivia enabled the extradition to France and subsequent prosecution of Nazi henchman Klaus Barbie, more than four decades after his wartime atrocities.

Regime change often spurs evidentiary change, such as newfound access to governmental archives and other sources of evidence regarding the predecessor regime enabling justice after time. So, for example, political change in the former Communist bloc meant newfound access to the KGB and Communist Party files and a flow of information enabling prosecutions. . . .

Conceptualizing Crimes Against Humanity As Ongoing Violations

Generations after and despite the passage of time, successor regimes continue to prosecute old regime wrongs, though this is often associated with few sanctions. . .When it is the state that is complicit in persecution, fundamental notions of criminal justice are turned on their head; state complicity, cover-up and other obstructions affect the very possibility of justice. The crime against humanity exposes the impact of the state's role in past wrongs as a significant element of the circumstances of justice compromised in transitional times.

Indeed, this factor goes a long way toward explaining why there is an apparent intractable tension when successor regimes fail to respond to injustice, itself constituting something of the nonideal circumstances of transitional justice. In the succession of regimes, the problem has led to the construction of the somewhat self-referential (i.e., regime-related) understanding of ongoing criminal responsibility termed "impunity." The notion of an ongoing violation (in the absence of punishment) reconceptualizes the relevant offense.