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

Duty to prosecute international crimes under international law 29
American amnesties of the 1970s and 1980s issued by Argentina, 122
Uruguay, 123 El Salvador, 124 and Chile 125 were considered by the Inter-
American Commission and in all the cases the Commission found them in
violation of the Inter-American Convention. 126 Scholars have argued that
where the substantive right is non-derogable, it carries attendant remedial
obligations that are equally non-derogable. 127 This obligation survives a
change in government. 128
However, state practice shows that the number of amnesty laws issued
by states and the truth commissions formed after a given conflict far
exceeds the number of prosecutions. 129 Similarly, some national courts, as
122 For a discussion, see CS Nino ‘The duty to punish past abuses of human rights put into
context: The case of Argentina’ (1991) 100 Yale Law Journal 2619.
123 For a discussion see D Pion-Berlin ‘To Prosecute or pardon? Human rights decisions in
the Latin American Southern Cone (1993) 15 Human Rights Quarterly 105.
124 For a discussion see N Roht-Arriaza ‘Case studies: Latin America, overview’ in Roht-
Arriaza (n 21 above) 148.
125 For a discussion see WW Burke-White ‘Protecting the minority: A place for impunity?
An illustrated survey of amnesty legislation, its conformity with international legal
obligations, and its potential as a tool for minority-majority reconciliation,
ethnopolitics & Minority Issues in Europe (2000) available at http://www.ecmi.de/
jemie/download/JEMIE03BurkeWhite30-07-01.pdf (accessed on 25 December 2010).
126 See Mendoza et al v Uruguay Cases 10.029, 10.036, 10.145, 10.305, 10.373, 10.374 and
10.375, Report 29/92, Inter-Am CHR, OEA/SerL/V/II 83 doc 14 P154 (1993); Mascre
Las Hojas v El Salvador Case 10.287, Report 26/92, Inter-Am CHR, OEA/SerL/V/II
83, doc 14 83, conclusion 5c (1993); Consuelo et al v Argentina Case 10.147, 10.181,
10.240, 10.262, 10.309, 10.311, Inter-Am CHR, Report 28/92, OEA/SerL/V/II 83,
doc 14 P1 (1993); Gary Hermosilla et al v Chile Case 10.843 Inter-Am CHR, Report 36/
96, OEA/SerL/V/II 95, doc 7 rev 46 (1997).
127 Eg, Roht-Arriaza asserts that ‘[c]ertain actions - torture, for example - are prohibited by
a non-derogable right because such actions are so repugnant to the international
community that no circumstances, no matter how exigent, can justify them. Thus,
when these underlying rights are at issue, the right to state-imposed sanction and
remedy by the state must also be non-derogable. The non-derogable nature of the
underlying right would be meaningless if the state were not required to take action
against those who violate the rights’ (Roht-Arriaza (n 21 above) 57 63).
128 It is well established that a change in government does not relieve a state of its duties
under international law. See L Henkin et al International law: Cases and materials (1987)
266.
129 See generally MC Bassiouni The pursuit of international criminal justice: A world study on
conflicts, victimization, and post conflict justice (2009). Since 1974 some seventeen truth
commissions have been established to enquire into the past of particular societies, to
‘tell the truth’ of what happened (P Hayner ‘Fifteen truth commission – 1974 to 1994:
A comparative study’ (1994) 16 Human Rights Quarterly 600). While in theory, truth
commission are not antithetical to prosecution (thus Louis Joinet in his 1997 Report on
the ‘Questions of the Impunity of Perpetrators of Human Rights Violations’ to the Sub-
Commission on Prevention of Discrimination and Protection of Minorities
recommends that an extra judicial commission of inquiry into the events of the past
should go hand in hand with prosecution and punishment of human rights violators -
UN Doc E/CN 4/sub2/1997/20/Rev1 (1997)), in practice where truth commissions
have been established prosecution have been very rare. As aptly captured by Priscilla
Hayner in her study of fifteen truth commission: “[i]n only a few of the fifteen cases
looked at […] was there an amnesty law passed explicitly preventing trials, but in most
other cases there was in effect a defacto amnesty –prosecutions were never seriously
considered’ (Hayne (above, at fn 4). Ratner also document that since the 70s, sixteen
nations have granted amnesty to individuals accused of committing international war
crimes (S Ratner ‘New democracies, old atrocities: An inquiry in international law’
(1999) 87 Georgetown Law Journal 707 722-23).