Using International Law to By-pass Domestic Legal Hurdles
On the Applicability of the Statute of Limitations in the Menéndez et al. Case
* LLM candidate (Geneva Academy for International Humanitarian Law and Human Rights), MA in International Law (UN University for Peace), currently working for the Advisory Service of the Legal Division at the International Committee of the Red Cross (ICRC), Geneva. [gabriel.chaveztafur{at}adh-geneve.ch]
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Abstract |
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Thirty-one years after committing their crimes, General Menéndez and seven other represores were sentenced by an Argentinean Federal Tribunal to prison terms ranging from 18 years to life in prison for the kidnapping, torture and murder of four members of a political opposition group. The crimes were committed as part of a widespread and systematic attack against those opposed to the military regime that ruled Argentina from 1976 to 1983. According to national legislation, however, they should have been shielded from prosecution by the statute of limitations found in Article 62 of the Penal Code. To circumvent this procedural hurdle in domestic law, the Tribunal relied upon international criminal law, describing the offences as crimes against humanity, maintaining that the statute of limitations did not apply to such crimes, and then proceeded to sentence the accused exclusively for domestic crimes. After a concise summary of the facts of the case, the following paper shall, first, review the use of international law by the Tribunal, pointing out certain inaccuracies in the application of international criminal law notions to handle domestic offences. This will be followed by a comment on the Tribunal's arguments regarding the non-applicability of the statute of limitations, in particular concerning its approach to jus cogens norms. Finally, this article presents the Tribunal's use of domestic law to reach its verdict, and questions whether using international law as a tool to by-pass domestic procedural hurdles could ultimately hinder the international struggle to end impunity.