Prosecuting International Crimes in Africa - PULP - University of ...

Prosecution and punishment of international crimes by the Special Court for Sierra Leone 107
sway in international criminal law and is followed here.
Amnesty for serious international crimes is contrary to international
law. 61 This reasoning is premised on the fact that humanity requires that
those who commit international crimes are held responsible for their acts.
This is based on the duty to prosecute and punish persons who commit
international crimes. While some may argue that there is yet no universal
acceptance that amnesties are unlawful under international law, 62 one
may point to several international law treaties requiring the prosecution of
perpetrators of international crimes. These treaties include the Convention
on the Prevention and Punishment of the Crime of Genocide, 63 the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 64 and the Geneva Conventions (I-IV). 65
The conflict between amnesty and punishment is based on the idea
that amnesty constitutes ‘immunity’ in law from criminal or civil
responsibility for past crimes committed in a political context. 66 According
to Geoffrey Robertson, ‘pardons and amnesties have been used from time
immemorial, benevolently (as a measure of forgiveness to those who have
already suffered some punishment for their crimes), politically (to bring to
an end civil wars and insurrections) and legally (to absolve convicts who
later appear innocent)’. 67 Treaties conferring blanket amnesties are
contrary to international obligations to bring perpetrators of international
crimes to justice. Arguably, ‘the real purpose of an amnesty statute is not
always to promote national reconciliation as such, or to diminish in a new
democratic society the debilitating desire for revenge, but rather, it is to
enable government officials, and military and police officers, to escape
60
years of democracy in South Africa: Revisiting the AZAPO decision’ in Le Roux and
Van Marle (59 above)127-148; O’Shea (n 58 above); Y Naqvi ‘Amnesty for war crimes:
Defining the limits of international recognition’ (2003) 85 International Review of the Red
Cross 583; A Cassese ‘The Special Court and international law: The decision
concerning the Lome Agreement Amnesty’ (2004) Journal of International Criminal
Justice 1130; LN Sadat ‘Exile, amnesty and international law’ (2006) Notre Dame Law
Review 955.
61 CB Murungu ‘Judgment in the first case before the African Court on Human and
Peoples’ Rights: A missed opportunity or a mockery of international law in Africa?’
(2010) 3 Journal of African and International Law 187-229.
62 A Cassese International criminal law (2003) 315.
63 Convention on the Prevention and Punishment of the Crime of Genocide, adopted by
UN General Assembly, 9 December 1948.
64 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984.
65
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field; Convention for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea; Convention Relative to the
Treatment of Prisoners of War; Convention Relative to the Protection of Civilians in
Time of War, Geneva, 12 August 1949.
66 B Brandon and M Du Plessis (eds) The prosecution of international crimes: A practical guide
to prosecuting ICC crimes in Commonwealth states (2005) 118 119.
67 Robertson (n 60 above) 273.