Ghana - Amnesty International

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26GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10foreigners working for the state or a statutory corporation who have committed crimes abroad, aslong as the crimes were committed in the course of duties carried out for the state. 81 To the extentthis applies to acts committed by non-citizens against non-citizens abroad, this would constituteuniversal jurisdiction and could apply to crimes under national law of international concern definedin national law, but for which Ghanaian law does not expressly authorize universal jurisdiction.It is not clear whether the courts of Ghana would exercise universal jurisdiction over crimes undernational law of international concern found in treaties signed by Ghana, which Ghanaian law haseither not yet defined or for which Ghanaian law has not expressly authorized universal jurisdiction.Section 56 of the Courts Act ends with a catchall provision, which states that the courts of Ghanamay exercise universal jurisdiction over “any other offence which is authorised or required by aconvention or treaty to which the Republic is a signatory to be prosecuted and punished in Ghanawherever the offence was committed.” 82 Government submissions affirming the primacy of ratifiedtreaties over national law lend credence to the notion that courts could authorize prosecutions basedon this catchall provision. 83 However, Ghana courts have not yet utilized this provision to exerciseuniversal jurisdiction in practice, and legal observers have stated that the judiciary is conservative bynature, indicating that courts are unlikely to exercise jurisdiction based on this catchall provisionalone, particularly if they consider that the definition of the crime in the treaty does not satisfy therequirements of legality under Ghanaian law. 844.3. CRIMES UNDER INTERNATIONAL LAWGhana courts may exercise universal jurisdiction over grave breaches of the four 1949 GenevaConventions, grave breaches of Protocol I, some other war crimes in international armed conflict,violations of common Article 3 to the Geneva Conventions, violations of Protocol II, some other warcrimes in non-international armed conflict and genocide. However, they cannot exercise universaljurisdiction over other crimes under international law, including crimes against humanity, torture,extrajudicial executions, enforced disappearances and aggression.4.3.1. WAR CRIMESGhana is a party to the four Geneva Conventions of 1949. 85 It has ratified Protocols I 86 and II 87 to81Courts Act, sect. 56 (4) (l).82Courts Act, sect. 56 (4) (n).83See, e.g., 2002 CERD National Report, para. 61. CERD/C/431/Add.31 October 2002.84See Interview with Senior Researcher, Centre for Democracy and Development – Ghana, in Accra, Ghana (11January 2012); interview with Representative, Commonwealth Human Rights Initiative, in Accra, Ghana (10January 2012).85The Geneva Conventions are:Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12August 1949 (First Geneva Convention)(http://treaties.un.org/pages/showDetails.aspx?objid=080000028015847c), 75 U.N.T.S. 31. (entered intoforce 21 October 1950);Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 1027these conventions. In addition, Ghana has been a party to the Rome Statute of the InternationalCriminal Court (Rome Statute) since 20 December 1999. 88 As indicated in the charts below, Ghanahas also ratified a number of other international humanitarian law treaties with penal provisions orprovisions that may give rise to international criminal responsibility.As discussed below, Ghana has defined grave and non-grave breaches of the Geneva Conventionsand their Protocols, as well as some other crimes which could amount to war crimes – includingrape, enforced prostitution, slavery and sexual slavery, other offences of sexual violence, torture ofchildren, and the degrading treatment of children – as crimes under national law. In some instancesthe definitions of these crimes fall short of the strictest requirements of international law.Importantly, except for breaches of the Geneva Conventions and their Protocols, Ghanaian law doesnot indicate that these crimes, if committed in the context of and associated with armed conflict,constitute war crimes, in line with their treatment under international law.The courts of Ghana have been able to exercise universal jurisdiction over breaches of the GenevaConventions and their Additional Protocols since 2009, over slavery since 1993, and over traffickingoffences incorporating slavery and slave-like practices since 2005, but it is not clear whether thecourts would exercise the universal jurisdiction they possess under Ghanaian law over any other warcrimes. For crimes defined in national law, the courts could exercise universal jurisdiction over themif committed by a foreign public officer abroad in the course of duties carried out for the state. Inaddition, a catchall provision of the Courts Act apparently authorizes Ghana courts to exerciseConvention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of ArmedForces at Sea, 12 August 1949 (Second Geneva Convention)(http://treaties.un.org/Pages/showDetails.aspx?objid=08000002801591b0), 75 U.N.T.S. 85. (entered intoforce 21 October 1950);Convention Relative to the Treatment of Prisoners of War, 12 August 1949 (Third Geneva Convention)(http://treaties.un.org/Pages/showDetails.aspx?objid=0800000280159839), 75 U.N.T.S. 135. (enteredinto force 21 October 1950); andConvention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, (Fourth GenevaConvention) (http://treaties.un.org/Pages/showDetails.aspx?objid=0800000280158b1a),75 U.N.T.S. 287. (entered into force 21 October 1950).86Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims ofInternational Armed Conflicts (Protocol I), 8 June 1977,(http://treaties.un.org/Pages/showDetails.aspx?objid=08000002800f3586),1125 U.N.T.S. 3. (entered into force 7 December 1978).87Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims ofNon-International Armed Conflicts (Protocol II), 8 June 1977,(http://treaties.un.org/Pages/showDetails.aspx?objid=08000002800f3cb8),1125 U.N.T.S. 609. (entered into force 7 December 1978).88Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference onthe Establishment of an International Criminal Court, Rome UN Doc A/CONF.183/9*, 17 July 1998, as correctedby the process-verbaux UN Doc C.N.577.1998.TREATIES-8, 10 November 1998, and U.N. Doc.C.N.604.1999.TREATIES-18, 12 July 1999.Index: AFR 28/004/2012 Amnesty International November 2012
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WHEtHER IN A HIgH-PRoFILECoNFLICt o
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