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

14 Chapter 1
3 The obligation to prosecute and punish
international crime
Once a crime has been identified as having jus cogens status, it inevitably
imposes obligations erga omnes, or obligations owed to all mankind. 15
These obligations include the duty to prosecute accused perpetrators and
to punish those found guilty. 16 These erga omnes duties are legally
enforceable, at least in theory, are non-derogable and are binding as such
on all members of the international community. 17 It is therefore possible
to argue that, by stating a duty and allowing no derogation from it,
international law may serve as persuasive evidence of the existence of an
erga omnes duty, although it is not sufficient. 18 The actual law and practice
of nations, as well as the decisions by international tribunals, must uphold
the duty as ‘an obligatory rule of higher standing’ before it will be accepted
as erga omnes. 19 It is to these laws, practices and decisions of courts and
tribunals that we now turn.
4 Sources of the obligation to punish or extradite
perpetrators of international crimes
4.1 International conventions
The obligation of a state to punish or extradite the perpetrators of
international crimes may be provided for by treaties to which the state is a
party. In such a case, the failure to prosecute and punish persons
15 See Presbyterian Church of Sudan v Talisman Energy Inc 244 F Supp 2d 289, 306 (SDNY
2003) (holding that ‘violations of jus cogens norms constitute violations of obligations
owed to all’ (‘erga omnes’)).
16 Bassiouni (n 14 above) 63 (pointing out that other duties include ’the non-applicability
of statutes of limitations for such crimes, the non-applicability of any immunities up to
and including heads of state, the non-applicability of the defense of “obedience to
superior orders” (save as mitigation of sentence), the universal application of these
obligations whether in time of peace or war, their non-derogation under “states of
emergency”, and universal jurisdiction over perpetrators of such crimes’).
17 Bassiouni (n 14 above) 65-68 (taking the position that ‘the implications of jus cogens are
those of a duty and not of optional rights … Consequently, these obligations are nonderogable’,
but noting that the question of these implications ‘has neither been resolved
in international law nor addressed by ICL doctrine’.) For a more sceptical view of the
legal force of jus cogens, see AP Rubin ‘Actio popularis, jus cogens, and offences erga
omnes?’ (2001) 35 New England Law Review 265.
18 DS Mitchel ‘The prohibition of rape in international humanitarian law as a norm of jus
cogens: Clarifying the doctrine’ (2005) 15 Duke Journal of Comparative & International Law
219 233.
19 Barcelona Traction case (n 14 above, 32); MC Bassiouni ‘A functional approach to
general principles of international law’ (1990) 11 Michigan Journal of International Law
768 801-809.