戦争犯罪および人道に対する罪に対する時効不適用に関する条約 |
以下は、1968年に国連総会で採択され1970年に発効した「戦争犯罪および人道に対する罪に対する時効不適用に関する条約」の条文(英語)、および関係資料である。
54カ国が加入。日本政府は、法の不遡及や一事不再理を規定した憲法39条に反しかねない等の理由で締約国となっていない。アメリカも不加入。
北朝鮮の人権犯罪追及などで言及される一方、日本軍の慰安所は「人道に対する罪」を構成する性奴隷制で、時効が適用されないという主張に際し、援用されることもある。
■わが外交の近況・昭和43年度(外務省)
1969年6月
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第4章 国際連合における活動とその他の国際協力
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4. 戦争犯罪および人道に対する罪に対する時効不適用に関する条約の採択
第23回総会で採択された本条約は,前文および11条からなり,戦争犯罪および人道に対する罪を犯した者に対し,その犯罪の犯行時点のいかんを問わず時効を撤廃することを目的とする。
わが国は,過去にさかのぼり時効の適用を撤廃することは憲法39条に反する疑いがあること,また犯罪の定義が不明確であるとの理由から締約国の範囲を定めた第5条に賛成したほかは,各条項および条約案全体に棄権した。
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■日本国憲法 第39条
何人も、実行の時に適法であつた行為又は既に無罪とされた行為については、刑事上の責任を問はれない。又、同一の犯罪について、重ねて刑事上の責任を問はれない。
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
G.A. res. 2391 (XXIII), annex, 23 U.N. GAOR Supp. (No. 18) at 40, U.N. Doc. A/7218 (1968), entered into force Nov. 11, 1970.
PREAMBLE
The States Parties to the present Convention,
Recalling resolutions of the General Assembly of the United Nations 3 (I) of 13 February 1946 and 170 (II) of 31 October 1947 on the extradition and punishment of war criminals, resolution 95 (I) of 11 December 1946 affirming the principles of international law recognized by the Charter of the International Military Tribunal, Nurnberg, and the judgement of the Tribunal, and resolutions 2184(XXI) of 12 December 1966 and 2202(XXI) of 16 December 1966 which expressly condemned as crimes against humanity the violation of the economic and political rights of the indigenous population on the one hand and the policies of apartheid on the other,
Recalling resolutions of the Economic and Social Council of the United Nations 1074 D (XXXIX) of 28 July 1965 and 1158 (XLI) of 5 August 1966 on the punishment of war criminals and of persons who have committed crimes against humanity,
Noting that none of the solemn declarations, instruments or conventions relating to the prosecution and punishment of war crimes and crimes against humanity made provision for a period of limitation,
Considering that war crimes and crimes against humanity are among the gravest crimes in international law,
Convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security,
Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes,
Recognizing that it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application,
Have agreed as follows:
Article 1
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (1) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the "grave breaches" enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.
Article 2
If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.
Article 3
The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention.
Article 4
The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles 1 and 2 of this Convention and that, where they exist, such limitations shall be abolished.
Article 5
This Convention shall, until 31 December 1969, be open for signature by any State Member of the United Nations or member of any of its specialized agencies or of the International Atomic Energy Agency, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention.
Article 6
This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article 7
This Convention shall be open to accession by any State referred to in article 5. Instruments of accession shall be deposited with the Secretary- General of the United Nations.
Article 8
1. This Convention shall enter into force on the ninetieth day after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the tenth instrument of ratification or accession, the Convention shall enter into force on the ninetieth day after the date of the deposit of its own instrument of ratification or accession.
Article 9
1. After the expiry of a period of ten years from the date on which this Convention enters into force, a request for the revision of the Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.
Article 10
1. This Convention shall be deposited with the Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States referred to in article 5.
3. The Secretary-General of the United Nations shall inform all States referred to in article V of the following particulars:
(a) Signatures of this Convention, and instruments of ratification and accession deposited under articles 5, 6 and 7;
(b) The date of entry into force of this Convention in accordance with article 8;
(c) Communications received under article 9.
Article 11
This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 26 November 1968.
IN WITNESS WHEREOF the undersigned, being duly authorized for that purpose, have signed this Convention.