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

Duty to prosecute international crimes under international law 15
responsible for committing crimes defined in the treaty would constitute a
breach of the state’s treaty obligations. 20
There are several treaties that provide for the duty to prosecute and
punish international crimes. The obligation in some of these treaties has
distilled into custom over time due to widespread and representative
participation. 21 A number of these treaties are discussed below.
4.1.1 1949 Geneva Conventions and 1977 Additional Protocols
Under the 1949 Geneva Conventions and the 1977 Additional Protocols,
member states 22 are obliged to put to an end to all ‘grave breaches’ set out
therein. 23 These ‘grave breaches’ (which are war crimes under
international law) are listed under the Geneva Conventions and
Additional Protocol I as willful killing; torture or inhuman treatment,
including biological experiments; willfully causing great suffering or
serious injury to body or health; extensive destruction of property not
justified by military necessity; willfully depriving a civilian of the rights of
a fair and regular trial; and the unlawful confinement of a civilian. 24
The Conventions and Additional Protocols place particular
obligations on state parties to search for, prosecute, and punish
20 As art 27 of the Vienna Convention on the Law of Treaties provides ‘[a] party may not
invoke the provisions of its internal law as justification for failure to perform a treaty’
Vienna Convention on the Law of Treaties, 23 May 1969, UN Doc A/CONF39/27.
See also L Oppenheim ‘International law’ in H Lauterpacht (1995) 45 (‘If a state …
possess[es] such rules of municipal law as it is prohibited from having by the Law of
Nations, it violates an international legal duty’). See also the Greco-Bulgarian
Communities case 1930 PCIJ (Ser B) 17 23; and the Polish Nationals in Danzig case 1931
PCIJ (Ser A/B) 44 24.
21 Indeed, it has been recognised by the ICJ that this process constitutes ‘one of the
recognized methods by which new rules of customary international law may be
formed’ North Sea Continental Shelf cases 1969 ICJ 41; N Roht-Arriaza ‘Sources in
international treaties of an obligation to investigate, prosecute, and provide redress’ in
N Roht-Arriaza (ed) Impunity and human rights in international law and practice (1995) 41.
22 As of 2010, 194 states are party to the Geneva Conventions, 170 states to Optional
Protocol 1, and 165 states to Optional Protocol II. See ICRC website http://
www.icrc.org/Web/Eng/siteeng0.nsf/html/party_main_treaties (accessed 1 January
2010).
23 See V Morris & MP Scharf An insider guide to the International Criminal Tribunal for former
Yugoslavia (1995) 64-65.
24 See art 50 Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, 12 August 1949, (Geneva Convention I); art 51
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and
Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, (Geneva
Convention II); art 130 Geneva Convention Relative to the Treatment of Prisoners of
War, 12 August 1949 (Geneva Convention III); and art 147 Geneva Convention
Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (Geneva
Convention IV); art 4 Protocol 1 Additional to the Geneva Conventions of Aug. 12,
1949 and Relating to the Protection of Victims of International Armed Conflicts,
opened for signature 12 December 1977 (Protocol I). See especially arts 11, 85, 86
Protocol II Additional to the Geneva Conventions of Aug 12, 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, opened for signature 12
December 1977 (Protocol II).