Rafaela Steffen Gonçalves da Rosa ANR: THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF

Transcription

1 THE DUTY TO PROSECUTE UNDER INTERNATIONAL HUMAN RIGHTS LAW VERSUS PROSECUTIONS UNDER TRANSITIONAL JUSTICE: THE NEEDED CONVERGENCE OF THEORETICAL AND NORMATIVE CONCEPTS, AND PRACTICAL OBSTACLES FOR VICTIMS' RIGHT TO JUSTICE Rafaela Steffen Gonçalves da Rosa ANR: THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF THE RESEARCH MASTER OF LAWS AT THE FACULTY OF LAW OF TILBURG UNIVERSITY Thesis Supervisor: Prof. Dr. Marc Groenhuijsen Tilburg University Faculty of Law Department of European and International Public Law Tilburg, the Netherlands July 2014

2 ACKNOWLEDGMENTS I express my deep gratitude to my supervisor, Prof. Marc Groenhuijsen, for all his attention, kindness and guidance during the process of completion of my thesis, and for the whole support in regards to my future academic projects. It has been a pleasure to complete my Master's thesis under his supervision. I would also like to address my gratitude to both professors and friends at Tilburg and Leuven University and friends in general for listening, offering me advice, and supporting me through this entire process. I dedicate this work to my family, for encouraging me in all of my pursuits and inspiring me to follow my dreams. Tilburg, the Netherlands, July 2014 Rafaela Steffen Gonçalves da Rosa. 1

3 ABSTRACT The divide between the 'duty to prosecute', as expressed under international human rights law, and the mechanism 'prosecution' under transitional justice, has been part of a debate, in theory and in practice, about the emergence of accountability for past human rights violations. In theory, there seems to be some contrasts between the notion of a 'duty to prosecute', as a legal obligation (responsibility) of states, and the notion of 'prosecution' as a mechanism of transitional justice for victims. While under human rights law the duty seems to be theoretically enforceable, under transitional justice the idea of prosecuting, and, consequently, of accountability, faces more practical obstacles for its enforcement, such as socio-political factors and amnesty laws. These obstacles undermine victims efforts to have their right to justice realized in the context of transitional justice. Therefore, the theoretical and practical contrasts tend to make it harder to benefit and assist victims of human rights violations. The present master's thesis aims at assessing such existing mismatches, and suggesting that there is a need for convergence between theoretical and normative notions of accountability, and the practical/on the ground socio-political hurdles that may affect the use of mechanisms of transitional justice in reality. The study seeks to provide a better assessment of the existing problems for victims' right to justice at the core of transitional justice. Keywords: Duty to prosecute. International Human Rights Law. Prosecutions. Transitional justice. Mismatches on Law and Policy. Victims. Right to justice. 2

4 TABLE OF CONTENTS I. Introduction...4 II. Theoretical/normative concepts and mismatches: The duty to prosecute under international law (right) and prosecutions under transitional justice (mechanism)...6 A. The Duty to Prosecute under International Law International Criminal Law and International Human Rights Law International Humanitarian Law Customary International Law...14 B. Prosecutions under Transitional Justice...15 C. The Theoretical Mismatches between Policy and Law Approaches about the Duty to Prosecute in the Transitional Justice Context...17 III. The Reality's Practical Obstacles: Legal, Socio-Political Factors, and Amnesty Laws in Face of the Duty to Prosecute under International Law...20 A. The Social-Political Factors...20 B. Amnesty Laws...22 C. The Duty to Prosecute under International Law at Domestic Borders: Advancing the Cross- Cultural Perspective...26 IV. The Victims' Place and Voice in Legal and Non-Legal Transitional Justice Processes: Converging Mismatches for the Right to Justice...31 A. Victims Agency...31 B. The Right to Justice for the Victims...33 C. The Convergence Required...34 V. Conclusion...37 VI. References

5 I. INTRODUCTION The daunting circumstances of States in the aftermath of conflicts and transitions from military rule have long been object of law and policy concerns. Marked by human rights violations to be addressed and societies to be reconciled and rebuilt, States have attempted to come to terms with its legacies by pursuing transitional justice as a beacon of its commitment to reestablishing the rule of law. Notwithstanding, challenges have permeated transitional justice and its entangling with legal responses. Transitional justice is defined as the full range of processes and mechanisms associated with a society s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. 1 Prosecution initiatives and trials are found among such set of judicial and non-judicial processes and mechanisms. Their implementation, however, must abide by legal standards and obligations, such as the duty to prosecute human rights violations of a prior regime. 2 In order to comply with the international standards, transitional justice processes should be in line with international law obligations, making sure that "States undertake investigations and prosecutions of gross violations of human rights and serious violations of international humanitarian law." 3 Notwithstanding, there is a divide between the 'duty to prosecute', as expressed under international human rights law, and the mechanism 'prosecution' under transitional justice. While under human rights law the duty to prosecute is theoretically enforceable, under transitional justice the idea of applying the mechanism 'prosecution' towards accountability has faced more practical obstacles. Socio-political factors and amnesty laws, and matters of policy choices have affected the implementation of prosecution initiatives. Moreover, in theory, scholars in the field of transitional justice tend to point out that strategies to prevent international crimes should not be restrained to prosecuting perpetrators based on universal standards, but that the surrounding political reality should also be taken into account by states when implementing transitional justice processes. 4 Yet, in attempting to give contribution to a more combined strategy, scholars instead diverge on both the theoretical approaches to follow, and on the enforcement of international human rights law principles and obligations. As it will be further exposed, the range of doctrinal views on law and policy about the prosecutions of serious crimes after transitions, and the very expansion of the international legal framework of the duty to prosecute, have thus challenged the very concept of accountability over time. In practice, the depicted obstacles have undermined accountability and victims efforts to have their right to justice realized in the context of transitional justice. Therefore, the theoretical and practical contrasts tend to make it harder to guarantee that victims will be assisted and that their rights will be thoroughly addressed. The present master's thesis aims at assessing such existing mismatches, and suggesting that there is a need for convergence between theoretical and normative notions of accountability, 1 UN Rule of Law, Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice, Secretary-General, March 2010, p.2. 2 Id. 3 Id., p.4. 4 J. Snyder and L. Vinjamuri. Trials and Errors: Principle and Pragmatism in Strategies of International Justice, International Security, vol. 28, no. 3, 2003, pp

6 and the practical/on-the-ground socio-political hurdles that may affect the use of mechanisms of transitional justice in reality. Therefore, it refers to the following question: How to deal with the existing legal and policy mismatches concerning the international duty to prosecute atrocious crimes in the transitional justice context? The study seeks to provide a better assessment of the existing problems for victims' right to justice at the core of transitional justice. The thesis is based on a literature review carried out between September 2013 and May Its methodology is mainly characterized as descriptive-analytical of the topic at hand, based on primary sources (more specific legislation on transitional justice, either international or domestic, and international treaties in general) and scholarly works (articles and textbooks). This study begins by Section II, which introduces the duty to prosecute under international law (II.A), the mechanism 'prosecution' under transitional justice (II.B), and the existing policy and law mismatches between such notions in the transitional justice context (II.C). Section III assesses the practical hurdles posed by social-political factors (III.A) and amnesty laws (III.B), moving to an analysis of the international duty to prosecute within domestic borders while suggesting to overcome mismatches by going beyond a cross-cultural perspective (III.C). Section IV goes in-depth into the proposed bridging of legal and policy mismatches by focusing on the centrality of victims' agency (IV.A) and right to justice (IV.B), and their respective convergence (IV.C) in the implementation of transitional justice mechanisms. At last, the final section is reserved for the conclusion, which wraps up the present thesis' research problem analyzed. 5

7 II. THEORETICAL/NORMATIVE CONCEPTS AND MISMATCHES: THE DUTY TO PROSECUTE UNDER INTERNATIONAL LAW (RIGHT) AND PROSECUTIONS UNDER TRANSITIONAL JUSTICE (MECHANISM) In this section, the theoretical and normative concepts about the duty to prosecute under international law as a right (II.A) and the mechanism 'prosecution' under transitional justice will be assessed (II.B). Subsequently, the assessment will pertain the theoretical mismatches between policy and law approaches about the duty to prosecute in the transitional justice context (II.C). A) The Duty to Prosecute under International Law The 'the duty to prosecute' dealt with in the present thesis is in its stricto sensu, meaning the one encompassed by the broader notion of 'justice', which here is understood as "going beyond mere criminal justice and including certain key elements such as accountability, fairness in the protection and vindication of rights and the prevention and punishment of wrongs." 5 The international legal framework in support of the duty to prosecute derives from several sources that can be mainly singled out as follows: the array of multilateral treaties that specify a State's duty to prosecute and punish those responsible for international crimes; the authoritative interpretations holding that States have an affirmative obligation to investigate, prosecute, and provide redress for violations in order to guarantee effective and full exercise of human rights; and, the recognition of victims' right to remedies. 6 In the next sub-sections such sources will be addressed, respectively, in the context of international criminal law and international human rights law (1), international humanitarian law (2), and, customary international law (3). 1. International Criminal Law and International Human Rights Law It is generally stated that the ultimate focus of international criminal law lies on individuals and their responsibility for crimes, which can be challenged by means of punishment. Notwithstanding, it also imposes duties on states about matters left at their own discretion. 7 Furthermore, international criminal law is often said to overlap with human rights law, since the former has served to vindicate the latter. 8 In fact, it has been voiced that in the circumstances of international crimes, victims have the right to see the punishment of those who committed the crimes. 9 Among the arguments favorable to the idea of punishment, it has been accorded that the authority of international law should be brought to bear to assure prosecution of atrocious 5 K. Ambos, The legal framework of Transitional Justice - Study Workshop 4 -The Legal Framework, Study prepared for the International Conference Building a Future on Peace and Justice, Nuremberg, June 2007, p.6; UN Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, UN Doc.S/2004/616 (2004), para.8. 6 N. Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 449, 1990, p D. F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 1991, p R. Cryer, International Criminal Law, in: International Human Rights Law, D. Moeckli et al. (eds.), Oxford: OUP, 2010, p Id., p

8 crimes. 10 It is relevant, however, to first address here which crimes fall under the category of atrocious, and how they are then expressed under international law. In international criminal law, grave human rights violations are set out as the crimes that are characterized by being so unacceptable that they must be of everyone's concern. Within such notion, there are two tracks of crimes covered: one of direct criminalization, and another of transnational crimes. The crimes under the direct criminalization category are those whose status are defined by international law per se, that is, they "transcend the national obligations of obedience by the individual State(...)", 11 and may be prosecuted by international courts without links to any specific domestic law. 12 The crimes at stake are: war crimes, crimes against humanity, genocide, and aggression. The international Military Tribunals of Nuremberg and Tokyo marked the beginning of modern international criminal law and of prosecutions of criminals for war crimes, crimes against humanity, and aggression (although by that time aggression was not yet an offense under international law). 13 Over time, prosecutions for international crimes evolved, and culminated with the creation by the UN of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993, and of the International Criminal Tribunal for Rwanda (ICTR) in Both tribunals have prosecuted a number of high-ranking leaders who were responsible for atrocious crimes. For instance, the ICTY addressed some of the crimes that were committed in the conflicts within the states emerging from the former Yugoslavia. Although at times being criticized to be perceived by ordinary Serbs, Croats, Bosnians, and Kosovars as a distant and abstract court, 14 the ICTY has helped to remove from the political scene and put on trial a number of high level accused of atrocious crimes. 15 In 2002 the International Criminal Court (ICC) officially started its activities with the entering into force of its Statute (Rome Statute). 16 The ICC is able to prosecute war crimes, crimes against humanity, genocide, and, possibly from 2017 on, the crime of aggression. 17 The ICC Statute provides for the duty to prosecute in its Preamble, 18 by stating that "it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes" 19 ; yet, such reasoning is still object of debate among scholars and practitioners D. F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 1991, p Nuremberg International Military Tribunal, Judgment and Sentence (1947) 41 AJIL 172, 221, R. Cryer, International Criminal Law, in: International Human Rights Law, D. Moeckli et al. (eds.), Oxford: OUP, 2010, p Id., p G. Zyberi, The Transitional Justice Process in the Former Yugoslavia: Long Transition, Yet Not Enough Justice, Oxford Transitional Justice Research Working Paper Series, p Id., p UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July R. Cryer, International Criminal Law, in: International Human Rights Law, D. Moeckli et al. (eds.), Oxford: OUP, 2010, p Gadaffi Case, Cour d appel Paris, 20 October 2000, Revue Générale de Droit International Public (2001), 475, and Cour de cassation, 13 March 2001, Revue Générale de Droit International Public (2001), UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, Preamble. 20 According to Wouters, Christian Tomuschat adopts a contrary position, stating that the duty to prosecute is not read out in the Preamble, and is not imposed upon states, being thus not legally binding. See C. Tomuschat, The Duty 7

9 The ICC serves as a complementary court, and operates whenever a state fails to comply with the duty to investigate and prosecute crimes. 21 As per the dealing with the existence of national amnesty laws, 22 the Statute has not explicitly touched upon the matter. 23 Notwithstanding, some articles of the Statute allow the ICC Prosecutor and judges to have a margin of discretion towards amnesty laws in face of local circumstances, 24 yet, "it is very unlikely that the ICC will ever give up prosecution because of an amnesty". 25 After all, the ICC's mandate and policy envision the eradication of impunity. 26 The establishment of several international and hybrid courts has proved to be emblematic of the societal decision of ensuring that perpetrators of most grave crimes be punished for their conduct or lack thereof. 27 Under international criminal law there is also a fallback instrument which enables the prosecution of relevant crimes in cases where there is no connection point (territoriality, nationality, passive personality or the protective principle) between the crime committed and the State where it took place. 28 This known additional ground of jurisdiction is called 'universal jurisdiction', and applies as a means to combat international crimes. 29 The crimes include to Prosecute International Crimes Committed by Individuals, in H.-J. Cremer and H. Steinberger (eds.), Tradition und Weltoffenheit des Rechts (Springer, 2002), A "middle ground position", in Wouters' words, is represented by Antonio Cassese, Paola Gaeta and John R.W.D. Jones in their commentary to the Rome Statute. Accordingly, although the Statute's words are addressed the State on whose territory international crimes have been committed and to the State of nationality of the alleged offender, there is still a possibility " that the Statute also provides an impetus for other States to prosecute an alleged offender on the basis of other jurisdictional principles, in particular the universality principle." See A. Cassese, P. Gaeta and J.R.W.D. Jones, The Rome Statute: A Tentative Assessment, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (OUP, 2002, II), 1901, at Conf. op. cit. in J. Wouters, The Obligation to Prosecute International Law Crimes, Instituut voor Internationaal Recht, KU Leuven, Onderzoek (Opinie), p.3-4. Available at: < last access: July 1, More on the 'universality principle' will be discussed further below, when 'universal jurisdiction' is addressed. 21 ICC Statute, Preamble and Art More on amnesty laws will be addressed in section III.B. 23 V. Vriezen, Amnesty Justified? The need for a case by case approach in the interests of human rights, Nijmegen: WLP, 2011, p See Art. 16 (Deferral of investigation or prosecution), Art.17 (Issues of admissibility), Art.20 (Ne bis in idem) and Art. 53 (Initiation of an investigation) of the ICC Statute. In respect to 'the interests of justice' clause of Art. 53 and the question on the discretionary power permitted, Kai Ambos states the following: "[The clause] gives the Prosecutor an additional instrument to exercise his discretion going beyond the rather technical Art. 17. Yet, this discretion does not convert the clause to a mere policy instrument irrespective of the legal criteria provided by it (gravity of the crime, interests of victims, age or infirmity of the alleged offender and the role of the perpetrator in the alleged crime); rather the Prosecutor has to take a legally substantiated decision in each individual case." [emphasis added]. K. Ambos, The legal framework of Transitional Justice - Study Workshop 4 -The Legal Framework, Study prepared for the International Conference Building a Future on Peace and Justice, Nuremberg, June 2007, pp V. Vriezen, Amnesty Justified? The need for a case by case approach in the interests of human rights, Nijmegen: WLP, 2011, p ICC Statute, Preamble; D. Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, European Journal of International Law, vol.14, No.3, 2003, p D. F. Orentlicher, Settling Accounts Revisited: Reconciling Global Norms with Local Agency, International Journal of Transitional Justice, Vol.1, 2007, 10-22, p Council of the European Union, 8672/1/09, AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, Report: Brussels 16 April 2009, para See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly 8

10 genocide, crimes against humanity, war crimes, piracy and torture. 30 A famous example where universal jurisdiction had been used is the arrest in London of former Chilean military leader, General Augusto Pinochet Ugarte, under Spain's request. The Spanish judge Baltazar Garzón issued an arrest warrant and a request of extradition of Pinochet based on the deaths and disappearances of Chileans during Pinochet's rule. 31 Subsequently, the UK House of Lords held that immunity from prosecution for torture and other international crimes for a former head of state did not apply to Pinochet, thus he could be extradited to Spain. Eventually, Pinochet was not extradited due to health issues, being released in 2000 and returned to Chile. 32 Several other cases under the principle of universal jurisdiction followed this case. 33 resolution 60/147 of 16 December 2005, III.4; The Princeton Principles on Universal Jurisdiction, Princeton Project on Universal Jurisdiction, S. Macedo (ed.), Princeton, New Jersey: Princeton University, It is noteworthy to stress that the criminal law's 'aut dedere aut judicare' rule also has links to universal jurisdiction. Accordingly, [u]nder the related aut dedere aut judicare (extradite or prosecute) rule, a state may not provide a safe haven for a person suspected of certain categories of crimes. Instead, it is required either to exercise jurisdiction (which would necessarily include universal jurisdiction in certain cases) over a person suspected of certain categories of crimes or to extradite the person to a state able and willing to do so or to surrender the person to an international criminal court with jurisdiction over the suspect and the crime. As a practical matter, when the aut dedere aut judicare rule applies, the state where the suspect is found must ensure that its courts can exercise all possible forms of geographic jurisdiction, including universal jurisdiction, in those cases where it will not be in a position to extradite the suspect to another state or to surrender that person to an international criminal court. See International Law Commission: The Obligation to Extradite or Prosecute (Aut dedere aut judicare), Amnesty International, London: Amnesty International Publications, 2009, p.8-9; M. C. Bassiouni and E. M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 3-5 (Dordrecht/Boston/London: Martinus Nijhoff Publishers 1995); International Law Commission, Preliminary Report on the Obligation to Extradite or Prosecute (Aut dedere aut judicare), A/CN.4/571, para.31; Draft Code of Crimes against the Peace and Security of Mankind with commentaries, 1996, commentary to Article 8, para.3. International Law Commission, Report of the International Law Commission on the Work of its Forty-Eighth Session, 51 U.N. G.A.O.R. Supp. (N.10) at 9, U.N. Doc. A/51/10 (1996). 30 Council of the European Union, 8672/1/09, AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, Report: Brussels 16 April 2009, para N. Roht-Arriaza, The Pinochet Effect and the Spanish Contribution to Universal Jurisdiction. In: International Prosecution of Human Rights Crimes, Kaleck, W., Ratner et al. (Eds.), Berlin: Springer, 2007, p For instance: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet, November 25, 1998, 3 WLR 1456 (Pinochet I); Regina v. Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet, March 24, 1999, 2 WLR 827 (Pinochet III). 33 In Belgium seven people have been convicted in three cases on the basis of universal jurisdiction, all of them relating to crimes in Rwanda: Public Prosecutor v. Butare Four, Cour d Assises, 8 June Belgian courts subsequently convicted Etienne Nzabonimana and Samuel Ndashykirwa in 2005 for their involvement in the genocide, Cour d Assises, 29 June 2005 and Bernard Ntuyahaga on 4 July 2007 to twenty years. There has also been another judgment in Belgium. Ephrem Nkezabera was arrested in June His trial commenced in November 2009 and he was found guilty on 1 December 2009 and given a 30 year sentence; however, he died of cancer on 24 May In Denmark, there has been one judgment, related to the indictment of a Croat former guard at the the Dretelj camp in Bosnia-Herzegovina, who committed grievous body harm of a grave nature against prisoners: Refik Saric Case, Danish Supreme Court, Denmark, 15 August In France, there have been two cases, which both have reached a judgment and which all took place in absentia: one case against former Captain Ely Ould Dah from Mauritania, for having committed torture in the Jreida death camp, ECtHR Decision on the admissibility in the in the case of Ould Dah v. France (No /03), March 2009, and the other relates to a former agent of the internal security department of Tunisia, Mr. Khaled Ben Said, he was convicted in absentia in December 2008 to 10 years imprisonment for complicity in torture, Criminal Court of Strasbourg, France, 15 December Further cases can 9

11 The second category, on transnational crimes, involves treaty-based regimes and the requirement that states make certain conducts criminal within their domestic law in order to enable the prosecution or extradition of those responsible or suspect for the conduct criminalized. 34 The crimes covered under the category include, for instance, torture and forced disappearance, as established, respectively, by the United Nations (UN) Convention against Torture, 35 and the UN Convention against Enforced Disappearances. 36 The Convention against Torture reflects a pragmatic acceptance of the limited role of international enforcement in securing protected rights since it is left on the State's hands to punish a crime. 37 It thus requires States to prosecute the crime proscribed wherever there is a reasonable ground to believe that an act of torture has been committed in any territory under [a State-party] jurisdiction." 38 Notwithstanding, in 1985 there already existed the Inter-American Convention to Prevent and Punish Torture, which also required States to punish the acts committed in view of their serious nature. 39 The Convention against Enforced Disappearances, recently entered into force, reflects a more focused move to victims rights while emphasizing the requirement that States investigate complaints and report of enforced disappearance, and bring those responsible to justice. 40 In 1980 the Working Group on Enforced or Involuntary Disappearances 41 was set up by the UN Commission on Human Rights as a monitoring body for the compliance of States to the Declaration on the Protection of All Persons from Enforced Disappearance, adopted in The Working Group stated that the Declaration refers to "the duty to try alleged perpetrators of acts of disappearance before ordinary (not military) courts(...)", 43 and that States must take effective measures in order to prevent and terminate de crime, and establish corresponding civil and criminal liabilities. 44 Yet, in 1994, the Inter-American Convention on Forced Disappearance of Persons was adopted by the OAS. The Convention related the crime of forced disappearance with the crime be found in: Universal Jurisdiction Trial Strategies: Focus on victims and witnesses, A report on the Conference held in Brussels, 9-11 November 2009, REDRESS, International Federation for Human Rights (FIDH), Nov. 2010, p R. Cryer, International Criminal Law, in: International Human Rights Law, D. Moeckli et al. (eds.), Oxford: OUP, 2010, p Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984). 36 International Convention for the Protection of All Persons from Enforced Disappearance, UN General Assembly, 20 December D. F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 1991, p Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984), Art Organization of American States (OAS), Inter-American Convention to Prevent and Punish Torture, 9 December 1985, OAS Treaty Series, No. 67, Art International Convention for the Protection of All Persons from Enforced Disappearance, UN General Assembly, 20 December 2006, Preamble and Art.9 (2)(3). 41 Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1435, 26 January 1981, para General Assembly, Declaration on the Protection of All Persons from Enforced Disappearance, A/RES/47/133, 18 December Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, A/HRC/10/9, 25 February 2009, pp Id., para.4. 10

12 against humanity, and clearly expressed in its wording a duty to prosecute, making it an obligation of States to criminalize and punish the act. 45 The duty to prosecute also appears in other human rights conventions on specific crimes. The Convention on the Prevention and Punishment of the Crime of Genocide states that genocide is an international crime for which the consequence of committing is prosecution. 46 Moreover, the crime has been reemphasized as punishable and a duty of State-parties to the Convention. 47 The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, although not referring to a duty to prosecute, contains in its Preamble a statement on the importance of punishment in order to prevent future war crimes and crimes against humanity. 48 The Convention thus stresses that no statutory or other limitations shall apply to the prosecution and punishment of the crimes. 49 The International Convention on the Suppression and Punishment of the Crime of Apartheid, whose crime falls under the jurisdiction of the ICC (crime against humanity), forces State parties to prevent and punish the crime, and adopt measures to prosecute, bring to trial and punish persons responsible for, or accused of, the acts described in the Convention. 50 Therefore, the Convention indicates that it entails an obligation on States to criminalize apartheid. Broader human rights instruments also contain provisions to grant the full respect and enjoyment of substantive rights while requiring States to prevent or remedy any breach to the provisions. The International Covenant on Civil and Political Rights (ICCPR), for instance, provides for the obligation of the State to bring to justice and punish perpetrators of human rights abuses so as to "respect and ensure" the rights contained in the instrument. 51 The Human Rights Committee, a monitoring body of the ICCPR, issued an opinion that the State not only has a duty to protect its citizens from violations of physical integrity, but also "a general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies." 52 Accordingly, the failure to do so constitutes a breach of the Covenant. 53 The Committee also clearly expressed that the duty to investigate and prosecute arises from violations such as torture and similar cruel, inhuman and degrading treatment, summary and arbitrary killing, and forced disappearances, either under domestic or international law. 54 Furthermore, the Committee issued several reports concerning the duty to prosecute or the rejection of impunity, as for state parties to the ICCPR. For instance, in 1993 it expressed its deep 45 Inter-American Convention on Forced Disappearance of Persons, OAS Fifteenth Regular Session of the General Assembly, 12/09/85, Art UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, Art International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, New York, 26 November 1968, Resolution 2391 (XXIII), Official Records of the General Assembly, Twenty-third Session, Supplement No. 18(A/7218), p Id., Art UN General Assembly, International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, A/RES/3068(XXVIII), Art UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Art Human Rights Committee, General Comment No.31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para.8, 15, Id., para Id., para

13 concern towards the amnesty law in force in Uruguay, stating that in adopting the Law Uruguay "effectively excludes in a number of cases the possibility of investigating into past human rights abuses" and "has contributed to an atmosphere of impunity(...)". 55 Similarly, in a report in respect to Argentina, the Committee stated that respect for human rights norms could be downplayed by the lack of accountability of the perpetrators of past human rights abuses. 56 The American Convention on Human Rights considered the first move towards the Inter- American Human Rights System. It set out the rights that States pledged to respect, created the Inter-American Court of Human Rights, in addition to defining the functions and procedures of the Inter-American Commission of Human Rights. 57 Just like the ICCPR, the American Convention reads out the obligation to "ensure to all persons (...) the free and full exercise(...) of rights and freedoms" set therein. 58 Such language had been interpreted by the Inter-American Court in its first contentious case under the compulsory jurisdiction provision of the American Convention, the Velásquez Rodríguez Case. 59 The Court rendered in its judgment that the State must investigate the facts regarding a violation of human right, as part of a "duty to ensure the free and full exercise of those rights to the persons within its jurisdiction." 60 The Court also emphasized that: The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. 61 Therefore, the decision emphasized the role of the State in respect to the duty to prosecute and investigate crimes. The European Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty that sets forth the fundamental civil and political rights that the Council of Europe s Member states undersigned to protect. 62 It sets up the European Court of Human Rights, 63 which has ruled that the idea of an 'effective remedy' for those people found within the jurisdiction of any member State also encompasses an "effective investigation capable of leading to the identification and punishment of those responsible and including effective 55 Human Rights Committee, Concluding Observations of the Human Rights Committee: Uruguay, CCPR/C/79/Add.19 (1993), para Human Rights Committee, Comments on Argentina, CCPR/C/79/Add.46, 21/22 March 1995, para Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969, Art Id., Art IACtHR, Vélasquez Rodríguez v. Honduras, Series C No.4, Judgment 0f 29 July 1988 (Merits). 60 Id., para Id., para Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS Id., Art

14 access for the complainant to the investigatory procedure." 64 The Court has interpreted that States must not only respect the rights laid down in the Convention, but must also be able to affirmatively secure them to anyone under their jurisdiction. 65 In Africa, there is not a continental criminal tribunal or court, and domestic courts do not deal with individual criminal responsibility for international crimes. For this reason, such crimes have been subject of ad hoc international criminal tribunals and the ICC. 66 In 2004, the Appeals Chamber of the UN-created hybrid Special Court for Sierra Leone emphasized the specific obligation to prosecute, and in the judgment it implicitly referred to crimes against humanity, along with genocide, war crimes, and other serious violations of international humanitarian law. 67 The human rights system in Africa is weak, and it does not address the issue of impunity and individual criminal responsibility for international crimes. Victims then have to rely on their national courts, which, as mentioned before, do not adjudicate on the liability for international crimes International Humanitarian Law The four Geneva Conventions and their two Additional Protocols contain provisions related to war crimes. 69 In case of grave breaches of the norms, States are under an obligation to search those who allegedly committed or have ordered the commission of the crimes, and they must stand trial. 70 The principles embodied in the Conventions have a wider scope, and apply "wherever political ends are sought through military means." 71 The Conventions set out 'grave breaches' of international humanitarian law as crimes committed against persons or property, including willful killing, torture or inhuman treatment, unlawful deportation, taking of hostages, 64 ECtHR, Aksoy v. Turkey, 100/1995/606/694, Judgment of 18 December 1996, para ECtHR, Ireland v. United Kindgdom, 25 ECtHR (ser.a), Judgment, at 91, para.239 (1978). 66 F.-X. Bangamwabo. International Criminal Justice and the Protection of Human Rights in Africa, in: Human Rights in Africa Legal Perspectives on Their Protection and Promotion, A. Bösl and J. Diescho (eds.), Windhoek: Macmillan Education Namibia, 2009, p Prosecutor v. Gbao, Decision on Preliminary Motion on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, Appeals Chamber, SCSL PT-141, 25 May 2004, p Id., p Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted 12 August 1949, 6 U.S.T. 3217, 75 U.N.T.S. 31, entered into force 21 October 1950 (Convention I); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, adopted 12 August 1949, 6 U.S.T. 3217, U.N.T.S. 85, entered into force 21 October 1950 (Convention II); Geneva Convention Relative to the Treatment of Prisoners at War, adopted 12 August 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, entered into force 21 October 1950 (Convention III); Geneva Convention Relative to the Protection of Civilian Persons in Times of War, adopted 12 August 1949, 6 U.S.T U.N.T.S. 28, entered into force 21 October 1950 (Convention IV); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, entry into force 7 December Convention I, Art.49; Convention II, Art.50; Convention III, Art.129; Convention IV, Art Security Council, Report pursuant to paragraph 5 of SC Resolution 837 (1993) on the investigation into the 5 June 1993 attack on United Nations forces in Somalia conducted on behalf of the Security Council, by Professor Tom Farer, S/26351, 24 August 1993, para.9. 13

15 and extensive destruction and appropriation of property, out of military necessity. 72 The duty to prosecute is here limited to conflicts of an international character. For internationalized and non-internationalized crimes, common Art.3 of the Conventions applies, since it requires minimum safeguards to be taken by each party to the conflict. The Additional Protocol II more specifically sets out the provisions that apply in case of noninternational armed conflicts. The Protocol foresees the granting of amnesty; 73 notwithstanding, it has been interpreted to cover only those persons detained or punished for having participated in hostilities, not those who in fact violated international humanitarian law. 74 Therefore, the provision for amnesty in Protocol II is not aimed at evading perpetrators from prosecution. 3. Customary International Law To the extent that a wide range of treaties embody the obligation to investigate and prosecute violations of human rights, it is accepted that they convey a message of a more uniform and universalized norm among states, and that, thus, they may be seen as binding on states as customary international law. 75 Accordingly, customary international law is characterized by the general and consistent practice of states that they follow from a sense of legal obligation. 76 There is a general agreement that torture, disappearances, and extra-legal executions are prohibited under customary international law. 77 It is also understood that a state is complicit if it fails to punish repeated or notorious violations of rights that are protected by customary law. 78 Therefore, state responsibility is seen as linked to the lack of action towards preventing crimes and punishing the perpetrators. 79 The practice of States, international tribunals, the UN, experts, and statements and scholarly opinions of Special Rapporteurs also reflect the existence of a customary norm under international law. 80 For instance, the UN's 2005 report on the set of principles to combat impunity 72 Convention I, Art.50; Convention II, Art.51; Convention III, Art.130; Convention IV, Art Protocol II, Art.6(5). 74 Letter of 15 April 1997 from Dr. Toni Pfanner, Head of the Legal Division, ICRC Headquarters, Geneva, to Naomi Roht-Arriaza and Douglas Cassel (filed with the addressees), in: N. Roht-Arriaza, Combating impunity: Some thoughts on the way forward, Law and Contemporary Problems vol. 59, 1996, pp , p N. Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 449, 1990, p M. N. Shaw, International Law 80 (5th ed., Cambridge, 2003); The ICJ in the North Sea Continental Shelf Cases [1969] ICJ Rep.3 at 44 has described the two main sources of customary international law as follows: Not only must the acts concerned [constituting state practice] amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. North Sea Continental Shelf Cases, 1969 I.C.J. Rep. 3, 44, para.77 [emphasis added]; see also Nicaragua Case, 1986 I.C.J. Rep. 14, 97, para.183 (stating that the Court had to direct its attention to the practice and opinio juris of States ). 77 Restatement (Third) of the Foreign Relations of the United States, para.702 comment n (1987); D. F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 1991, p Id., comment b. 79 In re Janes (U.S. v. Mex.), 4 Rep. Int'l Arb. Awards 82, (1926), invoking the reasoning of Restatement (see note above). 80 Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, by Diane Orentlicher, UN Doc.E/CN.4/2004/88, 27 February 2004; America's Watch, Special Issue: Accountability for Past Human Rights Abuses 2 (Dec. 1989); M. Bassiouni, Crimes 14

16 stresses out that States have an obligation to "investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished(...)". 81 Furthermore, the UN General Assembly's 1973 Principles of Co-operation, which was unanimously approved by States, is another example. It declared that all crimes against humanity must be investigated and subsequently prosecuted. 82 In addition, a state practice can be taken from South Africa's Constitutional Court, which in the State v. Wouter Basson case recognized the existence of a duty to prosecute when it upheld that the State's punishment of crimes against humanity and war crimes was an asserted obligation under international law. 83 B) Prosecutions under Transitional Justice The concept of 'prosecutions' adopted here pertains the one also found in the broad notion of justice, 84 however the concept here is analyzed while mindful of such broader context posited by transitional justice. Within the context of transitional justice, the criminal prosecution of those bearing the responsibility for international abuses --such as the ones referred to in sub-section A above-- stands out for being one of the mechanisms available. According to Bassiouni, the growing discontent with the practice of granting impunity, particularly for the leaders who have ordered the commission of atrocities and the senior commanders who executed these unlawful orders has led to a need for criminal accountability to the victims and the world community. 85 Therefore, prosecutions are thought to be important from the point of view of human rights protection. 86 The paradigm that can explain the approach of justice in the context of transitions, and that is related to the use of the prosecution mechanism, is the retributive one. The retributive paradigm has at its core criminal prosecutions, and justice is undertaken by means of the state s or the international community s actions towards punishments. Retributivism, thus, looks at the act committed in the past and attempts to correct the conduct. 87 Against Humanity in International Law, 492, (1992); Carla Edelenbos, Human Rights Violations: A Duty to Prosecute?, 7 Leiden J. Int'l L. 5, 14 (1994) (noting U.N.'s affirmation of duty to prosecute war crimes); N. Roht- Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 451, 461 (1990) (urging the necessity of an international duty to investigate grave human violations). 81 Report of Diane Orentlicher, independent expert to update the Set of principles to combat impunity - Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UN Doc. E/CN.4/2005/102/Add.1, 8 February 2005, p Principles of International Co-Operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, G.A. Res. 3074, 28 U.N. GAOR Supp., U.N. Doc. A/9030/Add.1 (Dec. 3, 1973); M. P. Scharf, Swapping Amnesty for Peace: Was There a Duty To Prosecute International Crimes in Haiti?, 31 Tex. Int'l L.J. 1, 22 (1996). 83 South Africa. The State v. Wouter Basson, South African Constitutional Court 2005 SA 30/03 (CC), p See section II.A. 85 M. C. Bassiouni, Accountability for violations of International Humanitarian Law and other Serious Violations of Human Rights, in Bassiouni (ed.), Post-Conflict Justice (Transnational Publishers, Ardsley, New York, 2002), p R. Cryer, International Criminal Law, in: International Human Rights Law, D. Moeckli et al. (eds.), Oxford: OUP, 2010, p R. Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity, 2002), p.33-34; see also A. Greenawalt. International Criminal Law for Retributivists (March 18, 2014). University of Pennsylvania Journal 15