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

12 Chapter 1
oblige states to prosecute and punish violations. 6 A further argument is
that state practice so far is inconsistent. 7
This chapter identifies and analyses the applicable international legal
standards with regard to the duty to prosecute and punish international
crimes in international law, arguing that existing law does in fact impose a
legal duty on states to prosecute and punish atrocious crimes.
2 Delineating the concept of international crimes
There is no unanimously agreed upon definition of ‘international crimes’
in international law. 8 The International Law Commission’s Draft articles
on State Responsibility, for example, use the term ’international crime’ to
refer to crimes of a state. 9 The judgment of the International Military
Tribunal at Nuremberg, on the other hand, asserts that ‘… crimes against
international law are committed by men, not by abstract entities …’. 10
Similarly, the corpus of conduct that falls within the category of
international crimes is not definitively settled. 11 For example, Ian
Brownlie notes a distinction drawn between breaches of international law
that may be punished by any state, such as violations of the laws of war;
6 Orentlicher (n 3 above) 2537 (arguing that international human rights undertakings
have typically emphasised ‘obligation of result’ leaving to states the determination of
the mean for protecting rights); see also O Schachter ‘The obligation to implement the
Covenant in domestic law’ in L Henkin (ed) The international bill of rights (1981) 311; Y
7
8
9
Dinstein ‘International criminal law’ (1985) 20 Israel Law Review 206 225.
See eg MM Jackson ‘The customary international law duty to prosecute crimes against
humanity: A new framework’ 16 Tulane Journal of International & Comparative Law 117
124 (arguing that the pervasive state practice of granting amnesties to perpetrators of
international crimes negates the assertion that this duty has evolved into customary
international law).
Compare PQ Wright ‘The law of the Nuremberg trial’ (1947) 41 American Journal of
International Law 38 56 (a crime against international law is ‘an act committed with
intent to violate a fundamental interest protected by international law or with
knowledge that the act will probably violate such an interest, and which may not be
adequately punished by the exercise of the normal criminal jurisdiction of any state’)
with Dinstein (n 6 above) 221 (while international crimes typically are grave offences
that ‘harm fundamental interests of the whole international community’, an offence
becomes an international crime only when defined as such by positive international
law).
Art 19 Draft Articles on State Responsibility UN Doc A/CN 4/SER A/1976/Add 1.
10 International Military Tribunal Judgment, reprinted in (1947) 41 American Journal of
International Law 172 220-221. See also Tel-Oren v Libyan Arab Republic 726 F 2d 774,
795 (DC Cir 1984) (noting ‘the handful of crimes to which the law of nations attributes
individual responsibility’).
11 See MJ Kelly ‘Cheating justice by cheating death: The doctrinal collision for
prosecuting foreign terrorists – passage of aut deder judicare into customary law & refusal
to extradite based on the death penalty’ (2003) 20 Arizona Journal of International &
Comparative Law 491 497 (pointing out that it has been widely accepted that there is no
customary obligation to prosecute and punish perpetrators of all international
offences).