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

30 Chapter 1
in the case of the courts of South Africa 130 and El Salvador, 131 express the
view that international law not only fails to prohibit amnesty but rather
encourages it. 132 These courts cite article 6(5) of Additional Protocol II of
1977 which on the face of it encourages amnesty by providing that at the
end of hostilities in internal conflicts the authorities shall endeavor to grant
the broadest possible amnesty to persons who have participated in the
conflict’. 133
The reality presented by these states practices on amnesties has made
some scholars question the existence of the erga omnes duty to prosecute
and punish international crimes. 134 It is our argument, however, that the
granting of amnesties by states cannot negate the existence of this duty
which, as we have demonstrated, exists both in treaty and customary law.
As Carla Edelenbos aptly notes: 135
[e]ven those states which have adopted amnesty law and thereby allowed
impunity do not deny the existence, in principle, of an obligation to prosecute,
but invoke counterveiling considerations, such as national reconciliation or
the instability of democratic process.
It is acknowledged that in some situations, such as in the aftermath of
massive atrocities, states parties may not be in a position to prosecute every
offender. 136 Both treaty and customary obligations to punish atrocious
130 Azanian Peoples Organization (AZAPO) v President of the Republic of South Africa 1996 (4)
SA 671 (CC) 691 para 32.
131
Proceedings 10-93 (May 20, 1993); reprinted in NJ Kritz (ed) Transitional Justice (1995)
549 555.
132 Similarly, in the Pinochet case Lord Lloyd commenting on the question of amnesty
stated: ‘Further light is shed on state practice by the widespread adoption of amnesties
for those who have committed crimes against humanity including torture. Chile was
not the firs in the field. There was an amnesty at the end of the Franco-Algerian War in
1962. In 1971 India and Bangladesh agreed not to pursue charges of genocide against
Pakistan troops accused of killing about one million East Pakistanis. General amnesties
have also become common in recent years, especially in South America, covering
members of former regimes accused of torture and other atrocities. Some of these have
had the blessing of the United Nations, as a means of restoring peace and democractic
government […] it has not been argued that these amnesties are as such contrary to
international law by reason of failure to prosecute the individual perpetrators’ R v Bow
Street Metropolitan Stipendiary Magistrate. Ex Parte Pinochet (1998) 4 All ER 897 (HL) 929
h-i.
133 This position is, however, disputed by the International Committee of the Red Cross.
See D Cassel ‘Lessons from the Americas: Guidelines for international response to
amnesties for atrocities’ (1996) 59 Law & Contemporary Problems 196 212.
134 See eg PA Schey et al ‘Addressing human rights abuses: Truth commissions and the
value of amnesty’ (1997) 19 Whittier Law Review 325.
135
C Edelenbos ‘Human rights violations: A duty to prosecute?’ (1994) 7 Leiden Journal of
International Law 5 21.
136
This has been true for countries such Philippines, Chile, Argentina and Uruguay: see J
Zalaquett ‘Confronting human rights violations committed by former governments:
Principles applicable and political constraints’ in Aspen Institute Report (n 5 above) 46-
47. He points out that a government's ability to prosecute a prior regime's abuses is
partly a function of the circumstances of the political transition. The widest scope for
punishment exists when the transition was brought about by external conquest, as