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

28 Chapter 1
notorious violations of jus cogens norms breaches the customary obligation
to respect the same set of peremptory rights. 116
5 Duty to prosecute and amnesties
Amnesties adopted by a state party for any one of the above-discussed
international crimes for which a duty to prosecute exists would generally
be inconsistent with its international obligations. 117 To the extent that they
exclude prosecution and punishment of certain internationally-defined
crimes, amnesties are indeed incompatible with the obligation to prosecute
and punish under conventional law or customary international law. 118 As
the International Criminal Tribunal for Former Yugoslavia stated in the
Furundzija case: 119
It would be senseless to argue, on the one hand, that on account of the jus
cogens value of the prohibition against torture, treaties or customary rules
providing for torture would be null and void ab initio, and then by unmindful
of a State say, taking national measures authorizing or condoning torture or
absolving its perpetrators through amnesty law.
The jurisprudence of the human rights treaty bodies also shows that
amnesty for gross human rights violations – such as torture,
disappearances, and extra judicial killings – is contrary to these ‘nonderogable
rights’ 120 provided for under international law. 121 Four Latin
116 But see Scharf (n 46 above) 41 58 (noting the problems relating to the argument that
there is a customary duty to prosecute for crimes against humanity); E Schabacker
‘Reconciliation of justice and ashes: Amnesty commissions and the duty to punish
human rights offenses’ (1999) 12 New York International Law Review 1 37 (noting
problems of divergent state practice); Orentlicher (n 3 above) 2582 (noting scholarly
disagreements about the range of protected human rights under customary law).
117 But see Jackson (n 7 above) 120 (arguing that amnesty is consistent with the duty to
prosecute).
118 The Office of the High Commissioner for Human Rights have defined amnesty as legal
measures that have the effect of (a) prospectively barring criminal prosecution and, in
some cases, civil actions against certain individuals or categories of individuals in
respect of specific criminal conduct committed before the amnesty’s adoption; or (b)
retroactively nullifying legal liability previously established. Amnesties do not prevent
legal liability for conduct that has not yet taken place, which would be an invitation to
violate the law; see OHCHR Rule of law tools for post-conflict states: Amnesties HR/PUB/
09/1 (2009) 41.
119 Case IT-95-17/1-T (10 December 1998) paras 151-157.
120 Under most international human rights regimes, states may not derogate from certain
obligations therein. In General Comment 29, the HRC asserted that the list of nonderogable
provision in art 4.2 of ICCPR was not exhaustive, opening the door for other
non-enumerated, non-derogable rights, which it called ‘peremptory norms’ (2001). The
African Commission has also held that all rights under the African Charter are nonderogable
- see Commission Nationale des Droits de l’Homme et des Libertes v Chad (2000)
AHRLR 66 (ACHPR 1995); Media Rights Agenda and Others v Nigeria (2000) AHRLR
200 (ACHPR 1998); Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227
(ACHPR 1999); Amnesty International and Others v Sudan (2000) AHRLR 297 (ACHPR
1999); and Malawi African Association and Others v Mauritania (2000) AHRLR 149
(ACHPR 2000).
121 See section 4.1.4 above. Some of the Latin American amnesties of the 1970 and 1980s
have been considered by the Inter-American Commission.