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

Duty to prosecute international crimes under international law 13
and other offences, such as piracy, established by municipal law, which
international law authorises states to punish. 12
This chapter focuses on crimes under international law – that is,
conduct that infringes international law and which is punishable as such
by the imposition of individual criminal liability – rather than all crimes
that have an international aspect. Furthermore, it does not analyse all
conduct that may constitute a crime under international law but rather
deliberates on those crimes that constitute jus cogens 13 violations of
international law, especially war crimes, crimes against humanity,
genocide, and torture. 14
12
I Brownlie Principles of public international law (1990) 305. See also Amnesty
International (n 3 above) 1 (distinguishing crimes under international law (such as war
crimes, crimes against humanity, genocide, and torture), crimes under national law of
international concern (such as hijacking or damaging aircraft, hostage taking and
attacks on diplomats), and ordinary crimes under national laws (such as murder,
abduction, assault and rape).
13
Jus cogens is formally defined by the Vienna Convention on the Law of Treaties as a
body of ‘peremptory norm[s] of general international law … from which no derogation
is permitted’ (art 53 Vienna Convention on the Law of Treaties, 23 May 1969). Jus
cogens crimes impose duties on all states notwithstanding their ratification of relevant
treaty laws.
14 There is a division of opinion on how a given international crime achieves the status of
jus cogens. As one author notes, ‘there is no scholarly consensus on the methods by
which to ascertain the existence of a jus cogens norm, nor to assess its significance or
determine it content’; see MC Bassiouni ‘International crimes: jus cogens and obligatio
erga omnes’ (1996) 59 Law & Contemporary Problems 67. However, there is some
consensus as to specific crimes which are jus cogens: aggression, genocide, crimes
against humanity, war crimes, piracy, slavery and slave-related practices, and torture.
Sufficient legal basis exists to reach the conclusion that all these crimes are part of jus
cogens. The ICJ, for example, states that ‘[jus cogens] obligations derive, for example, in
contemporary international law, from the outlawing of acts of aggression, and of
genocide, as also from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general international
law; others are conferred by international instruments of a universal or quasi-universal
character’. See Barcelona Traction Light and Power Co Ltd (Belgium v Spain) 1970 ICJ 32.
The Nuremberg and Tokyo Charters included the crime of aggression while modern
international criminal law – as embodied in the Statutes of the ICTY, ICTR, ICC and
other international and internationalised tribunals and developed in their jurisprudence
– tends to focus exclusively on the three core categories of crimes: crimes against
humanity, genocide and war crimes. Aggression also labelled ‘crimes against peace’ is
included in the Rome Statute of the ICC and the International Law Commission’s
Draft Code of Crimes Against the Peace and Security of Mankind. See art 16 Draft
Code of Crimes Against Peace and Security of Mankind Report of the International Law
Commission on the Work of Its Forty-eighth Session UN Doc A/51/10 (1996); art 5(2)
Rome Statute of the International Criminal Court, 17 July 1998, entered into force 1
July 2002, UN Doc A/CONF 183/9 (providing that the ICC ‘shall exercise jurisdiction
over the crime of aggression once a provision adopted in accordance with articles 121
and 123 defining the crime and setting out the conditions under which the Court shall
exercise jurisdiction with this crime’).