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

24 Chapter 1
payment of compensation where appropriate, a thorough and effective
investigation capable of leading to the identification and punishment of
those responsible and including effective access for the relatives to the
investigatory procedure’. 84
In interpreting the African Charter, the African Commission on
Human and Peoples’ Rights (African Commission) has held that state
parties have a duty to prosecute and punish serious violations of certain
rights under the African Charter. 85 These serious violations attracting the
duty to prosecute and punish include extrajudicial executions, 86 torture, 87
slavery, 88 and disappearances. 89 The Commission has also held that
amnesties covering serious violations of human rights are incompatible
with the duty of states to prosecute and punish these violations under the
African Charter. 90
4.2 Customary international law
Customary international law, which, unlike convention law, is binding on
all states and cannot be derogated from, 91 arises from ’a general and
consistent practice of states followed by them from a sense of legal
obligation’. 92 Customary international law is composed of (1) opinio juris,
that is, what states say they think is the law; and (2) state practice. 93
84 Above, 91.
85 The African Commission is an eleven-member independent Commission, whose
mandate includes a communication procedure, which examines complaints from states,
individuals, NGOs, and others (see arts 47-59 African Charter).
86 See Amnesty International and Others v Sudan (2000) AHRLR 296 (ACHPR) para 56; see
also Commission Nationale des Droits de l’Homme et des Libertes v Chad (2000) AHRLR 66
(ACHPR) para 22.
87 Amnesty International and Others v Sudan para 52.
88 Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000)
para 134.
89 Commission Nationale des Droits de l’Homme et des Libertes v Chad (2000) AHRLR 66
(ACHPR); Malawi African Association and Others v Mauritania (2000) AHRLR 149
(ACHPR 2000).
90 See Malawi African association and Others v Mauritania (2000) AHRLR 149 (ACHPR
2000) paras 82 & 83 (the Commission held that amnesty laws having ‘the effect of
leading to the foreclosure of any judicial actions that may be brought before local
jurisdictions’ is in breach of State Parties duty to ensure rights under the African
Charter’).
91 In Right of Passage Over Indian Territory (Portugal v India) 1960 ICJ 123, 135 (12 April)
Fernandes J stated: ‘It is true that in principle special rules will prevail of general rules,
but to take it as established that in the present case the particular rule is different from
the general rule is to beg the question. Moreover, there are exceptions to this principle.
Several rules cogestes prevail over any special rules. And the general principles to which
I shall refer later constitute true rule of jus cogens over which no special practice can
prevail.’ See also Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276, 1971 ICJ 66
(21 June).
92 Restatement (Third). See also art 38(1)(b) Statute of the International Court of Justice
(sources of international law applied by Court include ‘international custom, as
evidence of a general practice accepted as law’).
93 See generally L Mallinder Amnesty, human rights and political transitions (2008).