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

20 Chapter 1
the International Criminal Court (ICC), 53 as state parties risk an
intervention by the ICC if there is no investigation or prosecution. 54 The
ratification of the Rome Statute by more than 110 states 55 constitutes
significant evidence of an acknowledgement of the duty to prosecute and
punish these crimes. 56 Furthermore, the Rome Statute makes no provision
for amnesty. 57 The Statute defines crimes against humanity for the first
time and provides for their prosecution and punishment. 58
4.1.5 Human rights conventions
At first glance international human rights conventions such as the
International Covenant on Civil and Political Rights (ICCPR), 59 the
European Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention), 60 the American
Convention on Human Rights (Inter-American Convention), 61 and the
African Charter on Human and Peoples’ Rights (African Charter), 62
appear silent about a duty to prosecute and punish violations of the rights
they are to protect. 63 Nevertheless, some commentators argue that the
53 For a discussion of the Rome Statute and the duty to prosecute and punish, see eg, MP
Scharf ‘The amnesty exception to the jurisdiction of the International Criminal Court’
(1999) 32 Cornell International Law Journal 507; J Gavron ‘Amnesties in light of
developments in international law and the establishment of the International Criminal
Court’ (2002) 51 International & Comparative Law Quarterly 91; D Robinson ‘Serving the
interest of justice: Amnesties, truth commissions and the International Criminal Court’
(2003) 14 European Journal of International Law 481; T Clark ‘The prosecutor of the
International Criminal Court, amnesties, and the “interests of justice”: Striking a
delicate balance’ (2005) 4 Washington University Global Studies Law Review 389.
54 In its Preamble, the Rome Statute insists that ‘it is the duty of every state to exercise its
criminal jurisdiction over those responsible for international crimes’. The statute also
adopts the principle of ‘complementarity’ which gives national courts and the ICC
jurisdiction of over war crimes, crimes against humanity, and genocide (art 17(1)(a)).
55
As of March 2010, 111 states had ratified the Rome Statute.
56 The Rome Statute requires states to either prosecute and punish the enshrined crimes
domestically or submit the suspects to ICC prosecution (art 17(1)(a)–(b) Rome Statute).
57
In the travaux preparatoires, amnesty and pardon were both considered and rejected in
the context of the defence of neb is in idem. See Report of the Preparatory Committee on
the Establishment of an International Criminal Court 40 (para 174) (Proceedings of the
Preparatory Committee during March-April and August 1996) GAOR, 51 st Session,
Supplement 22 (UN Doc A/51/22); UN Doc A/CONF/283/2/Add 1 (1998) art 19.
See also R Wedgwood ‘The International Criminal Court: An American view’ (1999)
10 European Journal of International Law 108 109-113 (reporting that in August 1997 the
United States circulated a ‘non-paper’ to the Preparatory Committee suggesting that a
responsible decision by a democratic regime to allow an amnesty should be taken into
account in judging the admissibility of a case).
58 Art 7.
59 Adopted 19 December 1966 and entered into force 23 March 1976.
60
Signed 4 November 1950 and entered into force 3 September 1953).
61 Adopted 7 January 1970, OAS Official Records, OEA/Ser K/XVI/1.1, doc 65 rev 1,
corr 1 (1970).
62
Adopted 26 June 1981, OAU Doc CAB/LEG/67/3 Rev 5 (entered into force 21
October 1986), art 22.
63 Human rights instruments usually impose a general duty to respect, protect, promote,
and fulfil the rights enshrined therein; see H Shue Basic rights: Substance, affluence and US
foreign policy (1980).