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

26 Chapter 1
punish international crimes in international instruments is evidence that
the duty already exists or is emerging as a customary norm. 105
Additionally, a number of activities of the United Nations and other
intergovernmental organisations reinforce the view that the prosecution
and punishment of war crimes, torture, disappearances, extrajudicial
executions, crimes against humanity, slavery, piracy and genocide are
duties of states under customary law. 106 For example, reports prepared by
special rapporteurs, special representatives and working groups appointed
by the Commission on Human Rights of the United Nations (UN) to
report on human rights conditions in particular countries 107 or on
particular types of human rights violations, 108 have repeatedly condemned
104 Promotion of Human Rights Through Action to Combat Impunity (2005), Security
Council Res 1674 (2006) (emphasised ‘the responsibility of states to comply with their
relevant obligations to end impunity and to prosecute those responsible for war crimes,
genocide, crimes against humanity and serious violations of international humanitarian
law…’ UN Secretary-General’s Report on the Rule of Law and Transnational Justice in
Conflict and Post-Conflict Situations, s/2004/616. In 1971 the United Nations General
Assembly adopted the Resolution on War Criminals affirming that a State’s refusal ‘to
cooperate in the arrest, extradition, trial and punishment’ of persons accused or
convicted of war crimes and crimes against humanity is ‘contrary to the United
Nation’s Charter and to generally recognized norms of international law.’ GA Res 2840
(XXVI) UNDoc A/8429 (1971). See also the 1973 Principles of International
Cooperation in the Detention, Arrest, Extradition, and Punishment of Persons Guilty
of War Crimes and Crimes against Humanity (it declares that ‘war crimes and crimes
against humanity, wherever they are committed, shall be subject to investigation[,] and
the persons against whom there is evidence that they have committed such crimes shall
be subject to tracing, arrest, trial and, if found guilty, to punishment’) GA Res 3074
(XXVIII) UN Doc A/9030 (1973).
105 As Meron points out, the ‘repetition of certain norms in many human rights
instruments is [in] itself an important articulation of state practice’ (n 27 above) 92. See
also Filartiga v Pena Irala 630 F 2d 876, 882-884 (2d Cir 1980).
106 Indeed, while there is disagreement among commentators on which human rights are
protected by customary law, most agree that customary law prohibits torture,
disappearances, extrajudicial executions, war crimes, crimes against humanity, slavery,
piracy and genocide and that these prohibitions are jus cogens norms. See Meron (n 27
above) 210 (discussing the different human rights protected by customary law). For
general discussion of jus cogens norms (rules that have peremptory status) see M
McDougal et al Human rights and world public order (1980) 338-350.
107 See eg Report on Guatemala by the Expert, Mr Hector Gros Espiell, prepared in
accordance with para 9 of UN Commission on Human Rights Resolution 1989/74, 46
UN ESCOR Comm’n on Hum Rts, paras 48, 49, 57, 66(c) UN Doc E/CN 4/1990/45;
Report on Haiti by the Expert, Mr Philippe Texier, prepared in conformity with UN
Commission on Human Rights Resolution 1989/73, 46 UN ESCOR Comm’n on
Hum. Rts, paras 55, 61, 67, 87, 91, 102, 106(c) & (e), UN Doc E/CN 4/1990/44;
Report prepared by the Special Rapporteur on the situation of human rights in Chile in
accordance with para 11 of the Commission on Human Rights Resolution 1983/38 of 8
March 1983, UN Doc A/38/385 para 341 (1983); Final Report on the situation of
human rights in El Salvador submitted to the Commission on Human Rights by Mr
Jose Antonio Pastor Ridruejo in fulfilment of the mandate conferred under
Commission resolution 1986/39, 43 UN ESCOR Comm’n on Hum Rts 13 para 60,
UN Doc E/CN4/1987/21.
108 Eg, Report of the Working Group on Enforced or Involuntary Disappearances, 45 UN
ESCOR Comm’n on Hum Rts 85 para 312, UN Doc E/CN 4/1989/18; Report of the
Working Group on Enforced or Involuntary Disappearances, 47 UN ESCOR Comm’n
on Hum Rts 86 para 406. For an exposition, see DS Wessbrodt ‘The three “theme”
special rapporteurs of the UN Commission on Human Rights’ (1986) 80 American
Journal of International Law 685.