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

Duty to prosecute international crimes under international law 21
duty to protect rights implies a duty to prosecute violators. 64 Authoritative
interpretations of these treaties also hold that a state party fails in its duty
to respect, protect, promote, and fulfil the rights enshrined therein if it does
not investigate, prosecute and punish those who are responsible for serious
violations of physical integrity rights – such as torture, extrajudicial
executions and forced disappearances. 65
The Human Rights Committee, established to monitor compliance
with the ICCPR, 66 has held that state parties must investigate, prosecute
and punish those responsible for summary executions, 67 torture 68 and
unresolved disappearances. 69 The Committee has further held that
64
See N Roht-Arriaza ‘State responsibility to investigate and prosecute grave human
rights violations in international law’ (1998) 78 California Law Review 451 467;
Orentlicher (n 3 above) 2568; T Buergenthal ‘To respect and to ensure: State obligations
and permissible derogations’ in Henkin (n 6 above) 77 (noting that the ‘obligation to
ensure rights creates affirmative obligations on the state- for example-to discipline its
officials’); Y Dinstein ‘The right to life, physical integrity, and liberty’ in Henkin (n 6
above) 119 (noting that parties to the Covenant arguably must exercise due diligence to
prevent intentional deprivation of life by individuals, ‘as well as to apprehend
murderers and to prosecute them in order to deter future takings of life’).
65
Cf Scharf (n 46 above) 41 (arguing that during the negotiation of the Covenant, the
delegates specifically considered and rejected a proposal that would have required states
to prosecute violators).
66
The Committee is empowered to ‘receive and consider’ communications from
individuals who are subject to the jurisdiction of states that have ratified an Optional
Protocol and who claim to have suffered a violation of any of the rights protected by
ICCPR. See art 1 Optional Protocol to the International Covenant on Civil and
Political Rights, GA Res 2200A, UN Doc A/6316 (1966).
67 Baoboeram v Surinam Comm 146/1983 and 148-154/1983 para 13.2, UN Doc A/40/40
(1985). In General Comment on art 6 of ICCPR providing for right to life, the
Committee alluded to a duty to punish when it said ‘The Committee considers that
States Parties should take measures not only to prevent and punish deprivation of life
by criminal acts, but also to prevent arbitrary killing by their own security forces’
Report of the Human Rights Committee para 3, UN Doc E/CN 4/Sub 2/Add 1/963
(1982). Similarly, in Dermit v Uruguay the Committee expressed the view that ‘the State
Party is under an obligation to take effective steps … to establish the facts of Hugo
Dermit’s death, to bring to justice any person found to be responsible for his death and
to pay appropriate compensation to his family’ Comm 84/1981 para 11, UN Doc A/
38/40 (1983).
68 Muteba v Zaire Comm 124/1982, UN Doc A/39/40 (1984). In General Comments
interpreting art 7 of ICCPR which prohibits torture and cruel, inhuman or degrading
treatment or punishment, the Committee asserted that ‘… Complaints about illtreatment
must be investigated effectively by competent authorities. Those found guilty
must be held responsible, and the alleged victims must themselves have effective
remedies at their disposal, including the right to obtain compensation’; see Report of
the Human Rights Committee, General Comment 7(16) para 1, UN Doc E/CN 4/Sub
2/Add 1/963 (1982). Whether the requirement that offenders ‘be held responsible’
connotes a criminal penalty is unclear, but the UN Declaration on the Protection of All
Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment suggests that criminal punishment would be appropriate with
respect to torture, while other disciplinary action might be appropriate for less serious
forms of ill treatment (GA Res 3452, UN Doc A/10034 (1975) art 10).
69
In General Comments on art 6, the Committee observed that ‘… States should
establish effective facilities and procedures to investigate thoroughly cases of missing
and disappeared persons in circumstances which may involve a violation of the right to
life’; see Report of the Human Rights Committee para 3, UN Doc E/CN 4/Sub 2/Add
1/963 (1982). Although not proscribed as such by the ICCPR, the Committee has