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

Duty to prosecute international crimes under international law 25
The establishment and operations since the beginning of the 90s of
several international and hybrid criminal tribunals, such as the
International Criminal Tribunals for the former Yugoslavia 94 and
Rwanda, 95 the Special Court for Sierra Leone, 96 hybrid tribunals in
Kosovo 97 and East Timor, 98 Lebanon, 99 Bosnia and Herzegovina, 100 and
the Extraordinary Chambers of the Criminal Court in Cambodia, 101 are
cited as evidence of an international resolve to ensure that those most
responsible for core international crimes do not escape punishment. 102
The ICC Statute is often construed as imposing (or at least assuming) an
obligation on the part of the states that negotiated it to investigate and
prosecute core international crimes. 103
Various international documents refer to a duty to prosecute and
punish serious crimes, including war crimes, crimes against humanity and
genocide. 104 While not conclusive, the frequent reiteration of a duty to
94 Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res 827,
UN SCOR 48 th Sess, 3217 th mtg, UN Doc S/RES/827 (25 May 1993).
95 Statute of International Criminal Tribunal for Rwanda, SC Res 955, UN SCOR, 49th Sess, 3453d mtg, UN Doc S/RES/955 (8 November 1994).
96
Agreement Between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone, 16 January 2002. The Special Court
was endorsed by the UN Security Council in SC Res 1400, UN Doc S/RES/1400 (28
March 2002).
97 SC Res 1244, UN Doc S/RES/1244 (10 June 1999); see also UN Transitional
Administration Mission in Kosovo, on the Authority of the Interim Administration in
Kosovo, UN Doc UNMIK/REG/1999/1 (25 July 1999).
98 SC Res 1272, UN Doc S/RES/1272 (25 October 1999); See also UN Transitional
Administration Mission in East Timor, on the Organization of Courts in East Timor,
UN Doc UNTAET/REG/REG/2000/11 (6 March 2000).
99 SC Res 1757, UN Doc S/RES/1757 (30 May 2007); see also the Secretary-General,
Report of the Secretary-General on the Establishment of a Special Tribunal for
Lebanon, delivered to the Security Council, UN Doc S/2006/893 (15 November 2006).
100 The War Crimes Chambers was created in 2003 at the Peace Implementation Council
Steering Board Meeting and underwent extensive negotiations until its adoption on 6
January 2005. See PP Singh Human Rights Watch, narrowing the impunity gap: Trials before
Bosnia’s War Crimes Chamber (2007).
101
Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia
for the Prosecution of Crimes Committed During the Period of Democratic
Kampuchea, Royal Decree NS/RKM/1004/006 (2004) (Cambodia).
102
For a discussion see MC Bassiouni ‘From Versailles to Rwanda in seventy-five years:
The need to establish a permanent international criminal court’ (1997) 10 Harvard
Human Rights Journal 11 13.
103
Wedgwood (n 57 above) 108.
104
The Declaration on the Protection of All Persons from Enforced Disappearances states
that those who have or are alleged to have committed acts of enforced disappearance
shall not benefit from any special amnesty law or similar measures that effectively
might exempt them from any criminal proceedings or sanction. It also makes clear that
in the exercise of the right of pardon, the extreme seriousness of acts of enforced
disappearance shall be taken into account. GA Res 47/133 UN Doc A/47/49 (1992)
adopted by General Assembly Resolution 47/133 of 18 December 1992; Principle 18
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims
of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, adopted by the General Assembly in 2005 (Res 60/
147) (which emphasised that true reconciliation requires accountability and measures
of transnational justice, including investigation and prosecution, truth seeking,
reparations and institutional reform); Updated Set of Principles for the Protection and