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

16 Chapter 1
perpetrators of these ‘grave breaches’ unless they opt to hand over such
persons for prosecution by another state party. 25 The Commentary to the
Conventions, which is the official account of the negotiations preceding
their adoption, 26 holds that the duty to prosecute and punish is ‘absolute’
- implying that state parties would be in breach of the treaty obligation if
they fail or refuse to prosecute these grave breaches. 27 However, the duty
to prosecute is limited to the context of international armed conflict. 28
The international conflict requirement is derived from article 2 of the
four Conventions. Article 2 describes such conflicts as cases of a declared
state of war or any other armed conflict that may arise between two or
more of the contracting powers, even if a state of war is not acknowledged
by one of them; and cases of partial or total occupation of the territory of
the contracting party, even if such occupation meets no armed
resistance. 29 There is a high threshold of violence required to constitute a
genuine armed conflict, as distinct from lower-level disturbances such as
riots or isolated and sporadic acts of fighting. 30
4.1.2 Convention on the Crime of Genocide
The Convention on the Crime of Genocide (Genocide Convention)
entered into force on 12 January 1952 and was intended to prevent
genocide by ensuring its punishment. 31 Article II of the Genocide
Convention defines genocide as any of the following acts if committed
‘with intent to destroy, in whole or in part, a national, ethnical, or religious
group, as such’:
25 Art 51 Geneva Convention I; art 52 Geneva Convention II; art 131 Geneva Convention
III; art 148 Geneva Convention IV.
26 According to art 32 of the Vienna Convention on the Law of Treaties, ‘[r]ecourse may
be had to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to … determine the meaning’
when the text of a treaty provision ‘leaves the meaning ambiguous or obscure’ UN Doc
A/Conf 39/27 (23 May 1969).
27 See Morris & Scharf (n 23 above) 114; see also T Meron Human rights and humanitarian
norms as customary law (1989) 215 (finding the Geneva Conventions are not subject to
derogation).
28 See Prosecutor v Tadic (Case IT-94-1-T) Decision on jurisdiction para 68; M Scharf (n 3
above) 54, 64-65, 114 n 356; but see JJ Paust ‘Applicability of international criminal
laws to events in the former Yugoslavia’ (1994) 9 American Journal of International Law &
Policy 499 511-512; ICRC Customary International Humanitarian Law (2005) 603.
29 See art 2 Geneva Conventions I, II, III; n 24 above.
30 Meron (n 27 above) 46. For a discussion of the historical development of the notions of
‘war’ and ‘armed conflict’ see W Meng ‘War’ in (1982) 4 Encyclopedia of Public
International Law 282; KJ Partsch ‘Armed conflict’ in (1992) 1 Encyclopedia of Public
International Law 249.
31 See UNGAOR 178th, 179th, Plen Mtg 825 (remarks of Soviet delegate); 819 (remarks
of delegate from Pakistan); 820 (remarks from US delegate); 823 (remark from
Australian delegate); 840 (remarks of Polish delegate) (indicating that the prevailing
purpose was to prevent genocide by guaranteeing punishment of offenders.