Ghana - Amnesty International

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70GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 106. OBSTACLES TO THE EXERCISE OFCRIMINAL OR CIVIL JURISDICTIONAs discussed below, there are a number of obstacles to exercising criminal and civil jurisdictionbased on universal jurisdiction in criminal and civil cases. These obstacles include: many missingdefinitions of crimes under international law, some divergences between Ghanaian law andinternational law in principles of criminal responsibility and defences, immunities, and recognitionof amnesties or similar measures of impunity. 2036.1. FLAWED OR MISSING DEFINITIONS OF CRIMES UNDER INTERNATIONAL LAW,PRINCIPLES OF CRIMINAL RESPONSIBILITY OR DEFENCES6.1.1. DEFINITIONS OF CRIMESAs indicated above in Section 4, the definitions of grave breaches of the Geneva Conventions underGhanaian law are consistent with those under international law The definitions of most other crimesunder international law are either missing in national law or are inconsistent with the strictestrequirements of international law.Ghana has not defined war crimes not included in the Geneva Conventions and their Protocols,crimes against humanity, crimes ancillary to genocide, torture (except torture of children),extrajudicial executions, enforced disappearances and aggression as crimes under national law.Although some of the conduct amounting to crimes under international law can be prosecuted asordinary crimes, such as murder, assault, rape and abduction, this alternative is not entirelysatisfactory as it leaves gaps where conduct amounting to crimes under international law is notsubject to criminal responsibility under national law. Moreover, a prosecution based on universaljurisdiction for ordinary crimes is not possible in Ghana, except in the very rare circumstance whenthe act was committed abroad by a non-national serving in public office in Ghana. In addition,conviction for an ordinary crime, even when it has common elements, does not convey the samemoral condemnation as if the person had been convicted of the crime under international law anddoes not necessarily involve as severe a punishment. 2046.1.2. PRINCIPLES OF CRIMINAL RESPONSIBILITYIn Ghana, as in most common law countries, principles of criminal responsibility are found in203As noted above in footnote 2, this paper does not address a whole range of other types of obstacles to justice,including poverty and discrimination, that are not specific to universal jurisdiction.204See Prosecutor v. Bagaragaza, Decision on the Prosecution Motion for Referral to the Kingdom of Norway –Rule 11 bis of the Rules of Procedure and Evidence, Case No. ICTR-2005-86-11 bis, Trial Chamber (19 May2006), para. 16, aff’d, Prosecutor v. Bagaragaza, Decision on Rule 11 bis Appeal, Case No. ICTR-05-86- AR11bis, Appeals Chamber (30 August 2006), para. 16.Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 1071jurisprudence, though the Criminal Code also codifies many principles of criminal responsibility. Asexplained below, one principle of criminal responsibility under Ghanaian law falls short of theprinciples of responsibility required under international law with respect to crimes underinternational law and the principles that should apply to such crimes. Other principles of criminalresponsibility found in Ghanaian law are largely consistent with principles defined in internationallaw.The primary difference between principles of criminal responsibility found in the laws of Ghana andthose principles found in the Rome Statute and other international law instruments is that Ghanaianlaw does not have an express principle of command and superior responsibility. The principle ofsuperior responsibility in international law is found in Articles 86 (2) and 87 of Protocol Additionalto the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims ofInternational Armed Conflicts (Protocol I), 205 Article 6 of the International Law Commission’s 1996Draft Code of Crimes against the Peace and Security of Mankind 206 and Article 28 of the RomeStatute, 207 which itself falls short of other international law in some respects. In addition, theCommittee against Torture has concluded that superiors cannot escape criminal responsibility fortorture committed by their subordinates. 208 There does not appear to be jurisprudence or legislation205Paragraph 2 of Article 86 (Failure to act) of Protocol I states:“1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and takemeasures necessary to suppress all other breaches, of the Conventions or of this Protocol which result froma failure to act when under a duty to do so.2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does notabsolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or hadinformation which should have enabled them to conclude in the circumstances at the time, that he wascommitting or was going to commit such a breach and if they did not take all feasible measures within theirpower to prevent or repress the breach.”See also Protocol I, art. 87 (Duty of commanders).206Article 6 (Responsibility of superiors) of the Draft Code of Crimes, which was intended to apply both tointernational and national courts, states:“The fact that a crime against the peace and security of mankind was committed by a subordinate does notrelieve his superiors of criminal responsibility, if they knew or had reason to know, in the circumstances atthe time, that the subordinate was committing or was going to commit such a crime and if they did not takeall necessary measures within their power to prevent or repress the crime.”207Rome Statute, art. 28 (Responsibility of commanders and other superiors). Although Article 6 (1) (b) of theInternational Convention for the Protection of All Persons from Enforced Disappearance is modelled on the twotieredArticle 28 of the Rome Statute, Article 6 (1) (c) makes clear that this provision “is without prejudice to thehigher standards of responsibility applicable under relevant international law to a military commander or to aperson effectively acting as a military commander.”208Committee against Torture, General Comment 2 (Implementation of article 2 by States parties), U.N. Doc.Index: AFR 28/004/2012 Amnesty International November 2012
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CONTENTS1. INTRODUCTION ...........
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5.4.2. Protection..................
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7.2.1.5. Recognition and enforcemen
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