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

CHAPTER
1
DUTY TO PROSECUTE
INTERNATIONAL CRIMES
UNDER INTERNATIONAL LAW
* LL.B (Nairobi); LL.M (Pretoria); Doctoral Candidate (Rhodes).
1 J Donne Devotions upon emergent occasions XVII (1624) quoted in MC Bassiouni
‘Searching for peace and achieving justice: The need for accountability’ (1996) 9 Law &
Contemporary Problems 10.
2 Human rights professionals have figured most prominently in the debate. Other
participants include journalists, academics and political leaders.
3 For a discussion see eg DF Orentlicher ‘Settling accounts The duty to prosecute human
rights violations of a prior regime’ (1991) 100 Yale Law Journal 2537; M Scharf
‘Swapping amnesty for peace’ (1996) 31 Texas International Law Journal 1; R Boed ‘The
effect of a domestic amnesty’ (2000) 33 Cornell International Law Journal 297; C
Edelenbos ‘Human rights violations: A duty to prosecute?’ (1994) 7 Leiden Journal of
International Law 5; Amnesty International Universal jurisdiction – The duty of states to
enact and implement legislation (2001).
4 See the various sources in n 3 above.
5
See generally A Henkin ‘Conference Report’ in Justice and Society Program of the Aspen
Inst, State Crimes: Punishment or Pardon 92 (1989) (Aspen Institute Report).
11
Ken Obura*
No man is an island, entire of itself; every man is a piece of the continent, a
part of the main ... Any man’s death diminishes me because I am involved in
mankind, and therefore never send to know for whom the bell tolls; it tolls for
thee. 1
1 Introduction
Questions related to the international legal obligation to prosecute and
punish international crimes have generated rich discussion. 2 While most
commentators agree that international crimes should be prosecuted and
punished pursuant to international law, 3 the content of the duty to
prosecute and punish these crimes under the substantive body of
international law remains contentious. 4 Many analysts argue that
international law places hardly any restraints on a state's discretion in the
punishment of international law crimes. 5 A principal reason for this is that
key sources of the duty to prosecute international crimes fail to expressly