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

Duty to prosecute international crimes under international law 31
crimes recognise this and are consistent with a limited program of
prosecutions, but would be breached by wholesale impunity. 137 This
means states could satisfy their erga omnes obligations through a limited
number of prosecutions focusing, for example, on those who bear the
greatest responsibility. 138
6 Conclusion
An examination of international law confirms that international obligation
to prosecute and punish international crimes exists. Though state practice
shows a preponderant use of amnesties by states transitioning from
conflicts, this does not in any way negate the existence of the duty to
prosecute. In this regard, use of blanket amnesties where international
crimes have been committed would be a breach of the international
obligation to prosecute.
136 happened in post-war Germany and Japan. Less latitude for punishment exists if a
retreating military has been discredited but still retains autonomous power, and still less
if the military relinquishes power to civilians when it could remain in power
indefinitely, and thus is in a position to dictate the terms of a transition. See also AC
Stepan ‘Paths toward redemocratization: Theoretical and comparative considerations’
in G O'Donnell et al (eds) Transitions from authoritarian rule: Comparative perspectives
(1986) 64.
137 OHCHR has similarly stated that blanket amnesties are contrary to the duty to
prosecute as they ‘exempt broad categories of serious human rights offenders from
prosecution and/or civil liability without the beneficiaries having to satisfy
preconditions, including those aimed at ensuring the full disclosure of what they know
about the crimes covered by the amnesty, on an individual basis (OHCHR (n 118
above) 41).
138 This practice is emerging although none of the treaty instruments nor general human
rights obligations explicitly make such a distinction. For example, in the Velasquez
Rodriquez case, the Inter-American Court repeatedly asserts that a state party to the
American Convention must investigate and punish ‘any’ and ‘every’ violation of the
rights protected by the Convention. For a discussion on this point, see N Roht-Arriaza
Transnational justice and peace agreements (2005) 53 (pointing out that prosecutions of
those most responsible for designing and implementing a past system of state violence
or for the most notorious violations would best comport with common standards of
justice).