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

2 Introduction
prosecution of international crimes in Africa. The focus of the chapters is
on how international crimes have been prosecuted by national courts from
some African jurisdictions and international courts.
Contributions are on specific aspects of international criminal justice.
Some chapters present the contribution by international courts and
tribunals to the development of international law in Africa. Particularly, a
few contributions deal with the jurisprudence of the International Criminal
Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone
(SCSL). Undoubtedly, all these courts have contributed to the
development of international law. Other chapters address specific aspects
of international criminal justice in Africa.
International law imposes on states the duty to prosecute or extradite
persons responsible for international crimes. Obura’s contribution in
chapter 1 focuses on this, presenting an analysis of the position of
international law on the question whether and to what extent states are
under a legal obligation to prosecute international crimes. It reviews this
question in relation to the concepts of jus cogens and the obligation erga
omnes. It also addresses the controversial question of amnesty for
international crimes. Obura concludes that principles of international law,
both customary and conventional, impose on states the duty to prosecute
and punish international crimes and that amnesty does not bar the
prosecution of persons responsible for international crimes. A similar
conclusion is drawn by Murungu in his contribution on the Special Court
for Sierra Leone (chapter 4) in which he argues that amnesty is not a
defence to the prosecution of perpetrators of international crimes.
International crimes are committed by individuals, including senior
state officials. When state officials are accused of international crimes, they
tend to put forward the defence of their official position or immunity
attaching to them. The issue of immunity of state officials in relation to the
prosecution of international crimes is addressed by Murungu (chapter 2).
It is argued that while immunity is a norm under customary international
law, it does not prevail over the other higher jus cogens norms imposing the
duty to prosecute and punish individuals, including state officials
responsible for international crimes. Hence, Murungu argues that
immunity is not a bar to prosecution of perpetrators of international crimes
because immunity has long been outlawed by customary and conventional
international law, in addition to statutes establishing the ICC and other
tribunals. Although immunity is not a defence to the prosecution of
international crimes, different international criminal tribunals or courts
have given conflicting decisions on whether state officials are immune
from being subpoenaed to testify or submit evidence in international
courts. Murungu concludes that immunity does not exist in respect of
prosecution and subpoenas against state officials.