Statutory Limitations in International Criminal Law

By Ruth A. Kok
The Hague: T.M.C. Asser Press, 2007

Ruth Kok’s Statutory Limitations in International Criminal Law discusses the statutory limitations on war crimes and other grievous offences. The aim is clearly to provide a definitive treatise on the subject. In spite of this, the book reads more like a compendium of significant sources than a systematic treatment of the subject.

Early in the book, Kok reviews the history of statutory limitations in the major legal systems of the world. The references to Roman, Visigoth, medieval and Napoleonic law are rather shallow, however, and it is apparent that the author is not familiar with the common law. Later, in Chapters III and IV, she sets out the international and domestic framework in which questions of limitation are decided. It is telling that the focus is not so much on statutory limitations, as on the statutory stipulation – that statutory limitations do not apply. Thus there are extensive tables comparing different domestic systems, which inform us whether the country has legislation, draft legislation, or proposed legislation, “excluding the applicability of statutory limitations”.

Chapter V (“Country studies”) contains an extensive synopsis of the cases that have arisen since the Second World War. Kok then reviews the crimes committed by communist governments and military regimes. This part of the book is informative, wide in scope and thoroughly researched. The political parameters of the discussion are predictable, however, and there is little to challenge our assumptions.   

Kok seems to miss the legal issue in some of the cases, which has more to do with undue delay than statutory limitations. One of the most striking examples is the attempt to prosecute individuals, in 1995, for crimes committed during the Hungarian uprising in 1956. This led to a prolonged battle between legal and political institutions, in which the Hungarian Constitutional Court was forced to rule on the retroactivity of the legislation on five different occasions.

In Chapter VI, Kok dutifully lists the arguments for and against statutes of limitation. Here she distinguishes between procedural and substantive arguments. The procedural arguments “centre on the question of whether it is still possible to establish the truth of an event after the passage of considerable time and whether an effort to do so would not be unduly prejudicial to the right of the accused to a fair trial” (p. 240). This distinction seems strained, however, and fails to recognize the conceptual character of many evidentiary arguments.

Kok includes powerful quotations from figures like Hannah Arendt and Karl Jaspers in her review of the arguments against statutes of limitation. The discussion is limited, however. Kok focuses on the need for punishment and neglects issues like the cost of prosecution and the expenditure of sparse judicial resources in show trials. There is also the problem of litigating revenge.

The major problem with Kok’s analysis is that she does not confront the political impulses that surface in these prosecutions adequately. The case law is rampant with the desire of those in political power to settle old scores or advance a government agenda. Emile Durkheim is included in the list of those who favour prosecution, but Kok neglects the sociological question, which is whether these kinds of crimes can be traced to aberrant social norms. This would throw the prosecution of individuals into question.

Kok’s prose can be stilted. Some of this can be attributed to the international law, which still speaks of the criminal law as if it was the product of convention. The bibliography, table of cases and international documents are helpful, though readers will not be able to access all of the references. The analytic style of the book is reflected in a rather extravagant numbering system, which assigns a number to every paragraph. The index misses a good deal and does not include the tables, which should have been appendices.

The real purpose of the book asserts itself in the final chapter, when Kok finally comes out in favour of “imprescriptibility” and argues that a customary rule against statutory limitations has now emerged. If this is true, it is another blow to state sovereignty. Kok does not follow her position through to its natural conclusion, however, which is that these are matters for lawyers rather than politicians. This would leave room for equitable arguments in specific cases. My own sense, in reading the last chapter, is that it would have been better if the author had simply stated her thesis openly at the outset and defended it.