Ghana - Amnesty International

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82GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10consular, foreign head of state, and other state or official immunities, even if crimes underinternational law are in issue. 242According to the Diplomatic Immunities Act, Ghana generally grants diplomats immunity from civiljurisdiction, subject to some limitations, 243 but it is not clear whether civil claims against otherforeign officials would be barred by assertions of official immunities.Amnesty International believes that the judgment of the International Court of Justice in the ArrestWarrant case, which concluded that serving heads of state, heads of government and foreignministers were immune from prosecution in foreign courts, is based on an incorrect analysis ofinternational law. 244 Therefore, Amnesty International has urged that this ruling, which is bindingonly upon the states in that case, should be reversed and hopes that this will be done in the future,as no serving or former official should be able to assert successfully a claim of immunity withrespect to the worst possible crimes ever committed. As explained elsewhere, 245 there is noconvincing basis in customary international law to accord immunity of state officials in or out ofoffice when committing genocide, crimes against humanity and war crimes. Indeed, theInternational Court of Justice in the Arrest Warrant case failed to cite any state practice or opinioiuris in this respect.Instruments adopted by the international community show a consistent rejection of immunity fromjurisdiction and limited immunity from civil jurisdiction for diplomatic officers.242Ghana became a state party to the Vienna Conventions on Consular Relations on 4 October 1963 (See ViennaConventions on Consular Relations, 24 April 1963,http://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=III-6&chapter=3&lang=en#Participants, 56 U.N.T.S. 261 (entered into force 19 March 1967), which provides forconsular immunities, although it does not appear that provisions of the Convention have been incorporated intodomestic law243Article 31 of the Vienna Convention on Diplomatic Relations, incorporated into Ghanaian law by Section 1 ofthe Diplomatic Immunities Act, states:(1) “ . . . [A diplomatic agent]shall also enjoy immunity from its civil and administrative jurisdiction, exceptin the case of:(a) A real action relating to private immovable property situated in the territory of the receiving State,unless he holds it on behalf of the sending State for the purposes of the mission;(b) An action relating to the succession in which the diplomatic agent is involved as executor,administration, heir or legatee as a private person and not on behalf of the sending State;(c) An action relating to any professional or commercial activity exercised by the diplomatic agent inthe receiving State outsider his official functions.”244Democratic Republic of the Congo v. Belgium, Judgment, I.C.J. Rep. 3 (2001).245Amnesty International, Universal Jurisdiction: Belgian prosecutors can investigate crimes under internationallaw committed abroad, Index: IOR 53/001/2003, February 2003. See also Amnesty International, BringingPower to Justice: Absence of immunity for heads of state before the International Criminal Court, Index: IOR53/017/2010, December 2010 (https://www.amnesty.org/en/library/info/IOR53/017/2010/en).Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 1083prosecution for crimes under international law for any government official since the Second WorldWar. Those instruments articulated a customary international law rule and general principle of law.Indeed, several of the international instruments adopted over the past half century were expresslyintended to apply both to international and national courts. 246 Moreover, even the internationalinstruments establishing international criminal courts envisaged that the same rules of internationallaw reiterated in those instruments applied with equal force to prosecutions by national courts. 2476.6. BARS ON RETROACTIVE APPLICATION OF INTERNATIONAL CRIMINAL LAW INNATIONAL LAW OR OTHER TEMPORAL RESTRICTIONSStates have recognized for more than six decades since the adoption of the Universal Declaration ofHuman Rights that the prohibition of retroactive criminal laws does not apply to retrospectivenational criminal legislation enacted after the relevant conduct became recognized as criminal underinternational law. 248 Article 15 of the ICCPR, which Ghana has ratified, contains a similarprohibition. 249 The Committee against Torture has made clear that national legislation definingtorture as a crime under international law can apply to conduct which was considered as torture246These instruments include: Allied Control Council Law No.10, art. II (4) (a); U.N. G. A. Res. 95 (i), 11 Dec.1946; 1948 Genocide Convention, art. IV; 1950 Nuremberg Principles, principle III; 1954 Draft Code ofOffences, art. 3; 1973 Apartheid Convention, art. III; 1991 Draft Code of Crimes, art. 13 (Official position andresponsibility); 1996 Draft Code of Crimes, art. 6 (Official position and responsibility).247Statute of the Special Court for Sierra Leone, art. 6 (Individual criminal responsibility) (2); Law on theEstablishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes CommittedDuring the Period of Democratic Kampuchea, with inclusion of amendments as promulgated on 27 October 2004(NS/RKM/1004/006), art. 29. For further analysis on this point, see Amnesty International, UniversalJurisdiction: Belgian court has jurisdiction in Sharon case to investigate 1982 Sabra and Chatila killings, Index:EUR 53/001/2002, May 2002 (http://www.amnesty.org/en/library/info/IOR53/001/2002/en).248Article 11 (2) of the 1948 Universal Declaration of Human Rights states:“No one shall be held guilty of any penal offence on account of any act or omission which did not constitutea penal offence, under national or international law, at the time when it was committed. Nor shall a heavierpenalty be imposed than the one that was applicable at the time the penal offence was committed.”249Article 15 of the ICCPR states:“1. No one shall be held guilty of any criminal offence on account of any act or omission which did notconstitute a criminal offence, under national or international law, at the time when it was committed. Norshall a heavier penalty be imposed than the one that was applicable at the time when the criminal offencewas committed. If, subsequent to the commission of the offence, provision is made by law for theimposition of the lighter penalty, the offender shall benefit thereby.2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omissionwhich, at the time when it was committed, was criminal according to the general principles of lawrecognized by the community of nations.”Index: AFR 28/004/2012 Amnesty International November 2012
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