The duty to prosecute crimes under international law is no straight forward matter. According to multiple treaties addressing international human rights and humanitarian issues then the obligation to prosecute is clearly outlined and should raise no bone of contention.[1] However, there are various scholars who are of the opinion that this duty to prosecute is mot as obvious as many believe and that international law barely affects a state’s discretion in determining whether or not to prosecute international crimes.[2] The main reason for this diversion is due to the fact that international law does not expressly deny states to prosecute and punish international law crimes and the state practice itself has been inconsistent.[3]
This chapter will outline, discuss and evaluate the international law regime covering the obligation to prosecute international law crimes. It will confirm the existence of this obligation as a rule of International Law and by extension eliminate the according of amnesties to suspects of international law crimes.
The Concept of International Law Crimes
There is no universally accepted definition of the term international law crime. However, the understanding of international crimes has been developed over the years and currently a more defined understanding exists. Initially, the International Law Commission used the term international crime to refer to the crimes of a state.[4] This position was however disputed by the International Military Tribunal at Nuremberg which held that “… crimes against international law are committed by men and not abstract entities…”[5] This position was maintained over that of the ILC’s draft articles.
Legal scholars have also attempted to define an international law crime. According to Antonio Cassesse before classifying a crime as an international law crime one should ask what values are to be protected by a given legal rule and whether these values are considered important by the whole international community.[6] Cherif Bassiouni on the other hand described international law crimes as “those international criminal law normative proscriptions whose violation is likely to affect the peace and security of humankind or is contrary to fundamental humanitarian values or which is the product of state action or a state favouring policy.”[7] PQ Wright described International law crimes as “an act committed with intent to violate a fundamental interest protected by international law or with knowledge that the act will probably violate such an interest, and which may not be adequately punished by the exercise of the normal criminal jurisdiction of any state.”[8]
This classification using values sifts the international law crimes from crimes affecting an international interest or those who’s commission or effects affect more than one state. Cassesse and Bassiouni sited Piracy as a good example of such crimes. Though it is of international nature, piracy prohibition does not protect a fundamental value of the international community and therefore it cannot be considered an international law crime.[9] Ian Brownlie also draws this distinction between breaches that may be punished by any state and offences established by municipal law which international law authorises states to punish,[10] international law crimes falling in the former category.
Another identifier of international law crimes is the fact that they are considered to be crimes that constitute jus cogens violations of international law.[11] Jus Cogens is defined as a body of peremptory norms of general international law accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted.[12] An example of such crimes is war crimes, crimes against humanity, genocide and torture. In Presbyterian Church of Sudan v Talisman Energy Inc[13] it was held that violations of jus cogens norms constitute violations of obligations erga omnes[14]. This introduces the notion that a state is obligated to prosecute international law crimes even if it has no link whatsoever to the crime in question.
The Obligation to Prosecute and Punish Violations of International Humanitarian Law
In examining the obligation to prosecute grave violations of IHL one has to look at the 1949 Geneva Conventions and the 1977 Additional Protocols. These conventions oblige the State Parties to put an end to all grave breaches of the conventions’ provisions. The conventions list the grave breaches to include wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health; extensive destruction of property not justified by military necessity; wilfully depriving a civilian of the rights of a fair and regular trial; and the unlawful confinement of a civilian.[15]
The Geneva conventions and Additional Protocols continue to impose particular obligations on state parties to search for, prosecute and punish perpetrators of these grave breaches.[16] However, this obligation to prosecute is limited by the conventions to international armed conflicts.[17] When looking at non-international armed conflicts the Geneva Conventions do not provide an obligation to prosecute and neither is there a system of grave breaches, therefore, prosecution is left entirely to national criminal law and in instances where the non-state actor wins the civil war the chances of prosecution are minimal.[18]
Amnesties also raised a complication with regards to the obligation to prosecute non-international armed conflicts. The second Additional Protocol to the Geneva Conventions provides that “at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict whether they are interned or detained.”[19] This article could be claimed to supersede the obligation to prosecute in non-international armed conflicts, however, with the introduction of the Rome Statute and the International Criminal Court this argument is countered.
The Rome Statute relies on the nature of the crime as opposed to the context in which it is being perpetrated as the defining criterion in establishing the obligation to prosecute.[20] This is of particular importance as it moves in to close the impunity gap which was developed as a result of the Geneva Conventions and the Additional Protocols failure to expressly provide for an obligation to prosecute grave breaches during a non-international armed conflict. This view is given further backing by the ICRC in its Customary International Humanitarian Law study where it concluded that the right of states to vest universal jurisdiction in their national courts for war crimes committed in non-international armed conflicts is now established as a norm of customary international law.[21]
The Obligation to Prosecute the Crime of Genocide as an International Law Crime
The crime of genocide is defined as any of the following acts if committed with intent to destroy, in whole or in part, a national, ethnical, or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; or
(e) Forcibly transferring children of the group to another group[22]
Article IV of the Convention on the Prevention and Punishment of Genocide provides for an absolute obligation to prosecute persons responsible for the crime of genocide. Article V provides for the obligation of all contracting parties to enact criminal legislation applicable to perpetrators of genocide. However, the provision governing the scope of the duty to prosecute the crime of genocide is in article VI which provides that “persons charged with genocide…shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” This places the exclusive duty to prosecute under the treaty on the State where the crime was committed or on an international tribunal, this has the effect of eliminating universal jurisdiction.[23]
However, in the years following the convention’s adoption state practise developed which pointed towards States regarding universal jurisdiction over the crime of genocide as a principle of customary international law circumventing the restrictions of article VI of the convention.[24] This led to courts acknowledging the obligation to prosecute the crime of genocide as one having universal jurisdiction. This was also supported by the writings of scholars.[25] The International Court of Justice in Bosnia and Herzegovina v Yugoslavia contributed further when it held that “… the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.”[26] This cemented the crime of genocide as one which States could exercise universal jurisdiction over and which they are obligated to prosecute and punish.
The Obligation to Prosecute other International Law Crimes Particularly Violations of Human Rights Law
The obligation to prosecute grave violations of Human Rights Law is traced back to the treaties establishing these human rights. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment herein the Torture Convention is one of the treaties which expressly imposes a duty on the contracting parties to prosecute violators of the convention. The obligation to prosecute in the Torture Convention extends to when the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; when the alleged offender is a national of that State; when the victim was a national of that State if that State considers it appropriate.[27] Article 5(2) continues to provide that each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.[28]
When looking at the other human rights conventions such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and even the European Convention for the Protection of Human Rights and Fundamental Freedoms a common feature is their failure to expressly provide for the prosecution and punishment of their violations. However, scholars have argued that the duty to protect human rights extends to a duty to prosecute the violators of these rights[29] and that a state party fails in its duty to respect, promote and fulfil the rights encapsulated in the conventions if it does not investigate, prosecute and punish the violators of these rights.[30]
The obligation to prosecute violations of human rights law is especially evident in the case of physical integrity rights. A common feature of the UN human rights law regime and that of regional human rights regimes such as the African and American regimes is that States must investigate, prosecute and punish those responsible for violations of physical integrity rights such as summary executions, torture and unresolved disappearances.[31] These regimes also continue to assert that amnesties for serious violations of human rights are incompatible with the duties of states and the various conventions.[32]
[1] This can be found in the Geneva conventions and other conventions such as the Genocide Convention, the Torture Convention and others which will be examined further within this chapter.
[2] A Henkin ‘Conference Report’ in Justice and Society Program of the Aspen Inst, State Crimes: Punishment or Pardon 92 (1989) (Aspen Institute Report).
[3] Chacha Murungu and Japhet Biegon (editors) Prosecuting International Crimes in Africa: Chapter 1 Duty to Prosecute International Crimes under International Law by Ken Obura Pretoria University Law Press
[4] ILC Draft Articles on State Responsibility Article 19, 1976
[5] International Military Tribunal Judgment, reprinted in (1947) 41 American Journal of International Law 172 220-221.
[6] Antonio Cassesse, International Criminal Law
[7] M. C. Bassiouni of “international crimes”, “international delicts” and “international infractions”: Introduction to International Criminal Law (Transnational, 2003), 118- 133.
[8] PQ Wright ‘The law of the Nuremberg trial’ (1947) 41 American Journal of International Law 38
[9] Supra note 7 page 122
[10] Ian Brownlie, Principles of Public International Law (1990) 305
[11] Supra note 3 page 13
[12] Article 53 Vienna Convention on the Law of Treaties 1969
[13] 244 F Supp 2d 289, 306 SDNY 2003
[14] This is translated to obligations owed to all mankind and as they are non-derogable, they are binding to the international community as stated by Bassiouni in Supra note 7page 65.
[15] Art 50 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Art 51 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea; Art 130 Geneva Convention Relative to the Treatment of Prisoners of War; and Art 147 Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
[16] Art 51 / 52 / 131 / 148 of the four Geneva Conventions respectively
[17] These have been defined by common article 2 of the Geneva Conventions as cases where there is a declared state of war or any other conflict that may arise between two or more contracting powers even if a state of war is not acknowledged by one of them; and cases of partial or total occupation of the territory of the contracting party even if such occupation meets no armed resistance.
[18] Jan Wouters, The Obligation to Prosecute International Law Crimes page 6
[19] Article 6 Para 5 of the Second Additional Protocol to the Geneva Conventions
[21] ICRC Customary International Humanitarian Law (Cambridge University Press, 2005), 603
[22] Article II of the Convention on the Prevention and Punishment of the Crime of Genocide and Article 6 of the Rome Statute.
[23] This is also confirmed when the travaux préparatoires of the convention are examined see W. A. Schabas, Genocide in International Law Cambridge, 2000 Page 355-360
[24] The most famous of this state practise is the Eichmann trial in Israel
[25] See inter alia T. Meron, «International Criminalization of Internal Atrocities », 89 American Journal of International Law (1995), 554, at 569; Id., War Crimes Law Comes of Age (OUP, 1998), 249-250.
[26] ICJ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) 11 July 1996 Preliminary Objections at Para 31
[27] Article 5 (1) of the Torture Convention
[28] This article has been interpreted to introduce universal jurisdiction for the prosecution of persons guilty of the crime of torture. The Report of the Working Group on the Draft Convention Against Torture stated that this provision was intended for states which were unwilling to prosecute persons guilty of torture.
[29] Naomi Roht-Arrianza State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law Carlifornia Law Review
[30] Supra Note 3 page 21
[31] The Committee on Civil and Political Rights in the case of Muteba v Zaire held that complaints about ill-treatment must be investigated by competent authorities. Those found guilty must be held responsible and the alleged victims must have effective remedies at their disposal. In the American context in the Velasquez Rodriquez case the Iner-American Court interpreted article 1(1) of the Inter-American Convention to impose on state parties a legal duty to ‘… use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation
[32] Malawi African association and Others v Mauritania (2000) the African Commission held that amnesty laws having ‘the effect of leading to the foreclosure of any judicial actions that may be brought before local jurisdictions’ is in breach of State Parties duty to ensure rights under the African Charter’.
diplomaticlawyer 