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Amnesty for war crimes: Defining the limits of international recognition

Published online by Cambridge University Press:  25 February 2011

Yasmin Naqvi
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Résumé

L'action pénale contre les personnes accusées d'avoir commis des crimes de guerre est un aspect fondamental du droit d'une victime à la justice. Toutefois, dans les conflits armés où des violations graves du droit international ont été perpétrées massivement, il est souvent nécessaire d'établir un équilibre entre le droit des victimes à obtenir justice de manière tangible et le besoin, pour l'Ètat territorial, de traiter les atrocités passées de façon à ne pas engendrer de nouvelles violences et à stimuler le processus de réconciliation. Dans de telles circonstances, une justice réparatrice associant des amnisties limitées à d'autres mécanismes de responsabilité peut constituer un moyen d'assurer l'État de droit tout en tenant compte de la complexité du processus de transition. Quand des États vivant une situation de transition prodament de telles amnisties, il est important d'établir si celles-ci seront reconnues par la communauté internationale.

Cet article analyse les règies et les principes internationaux qui fondent ou étayent la décision que prend un tribunal national ou international de reconnaître ou non une amnistie couvrant les crimes de guerre. l'auteur s'attache d'abord à déterminer s'il existe un devoir coutumier de traduire en justice les personnes accusées de crimes de guerre, quels qu'ils soient. Les effets du caractère de jus cogens de l'interdiction de commettre des crimes de guerres sont égakment examinés, tout comme la pratique plus récente des États d'établir des tribunaux spéciaux pour juger les personnes accusees de crimes de guerre. L'article fait valoir que le droit international n'interdit pas aux tribunaux nationaux et internationaux d'accorder une amnistie limitée à ceux qui sont considérés comme «les moins responsabks » de la commission des crimes de guerre, lorsque l'amnistie est associée à des mesures de contrôle et vise à faciliter l'instauration d'une paix durable.

Type
Research Article
Information
International Review of the Red Cross , Volume 85 , Issue 851: Les victimes après la guerre: action humanitaire, réparation et justice/Victims after the war: humanitarian action, reparation and justice , September 2003 , pp. 583 - 626
Copyright
Copyright © International Committee of the Red Cross 2003

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References

1 Remedial justice may be characterized as the legal means to recover a right or to prevent or obtain redress for a wrong. Retributive justice focuses on the need to punish the wrongdoer for illegal acts committed. For a discussion thereof, see Avruch, K. and Vejarano, B., “Truth and reconciliation commissions: A review essay and annotated bibliography”, The Online journal of Peace and Conflict Resolution, Vol. 4.2, 2002, pp. 34–76.Google Scholar

2 See generally, Teitel, R., “Transitional jurisprudence: The role of law in political transformation”, Yale Law journal, Vol. 106. No. 7, 1997, p. 2009CrossRefGoogle Scholar, esp. p. 2037. A contextual approach should also take into account the fact that notions of justice, truth, forgiveness, reconciliation and accountability are socially constructed and culturally constituted.

3 Amnesty literally means “[f]orgetfulness, oblivion; an intentional overlooking”. Oxford English Dictionary, 2nd ed., 1989. Legally, it means foreclosing criminal prosecution for past offences. This preconviction measure may be distinguished from a pardon, which officially recognizes the guilt of the offender but foregoes the sentence. The word “amnesty” is derived from the Greek “amnestia” meaning oblivion or not remembering.

4 For reasons of subject and space limitation, this article will not deal directly with the recognition of amnesties for other serious international crimes, such as torture, genocide, or crimes against humanity.

5 In this article, the word “recognition” is taken to mean the acknowledgement of legal validity under international law by States or courts.

6 Charles Taylor left the presidency and the territory of Liberia on 11 August 2003 following strong international pressure and the intervention of a Nigerian-led ECOWAS peacekeeping force. The indictment for war crimes of the Sierra Leone Special Court, originally issued on 7 March 2003 and then re-issued on 4 June 2003, remains in force. The Security Council, in Res. 1478 (2003), UN Doc. S/RES/1478, 6 May 2003, has shown support for the indictment, calling on “all States, in particular the Government of Liberia, to cooperate fully with the Special Court for Sierra Leone” (preambular para. 10).

7 “Liberia applies to the International Court of Justice in a dispute with Sierra Leone concerning an international arrest warrant issued by the Special Court for Sierra Leone against the Liberian President”, International Court of Justice Press Release 2003/26, 5 August 2003.

8 In a judgment that has sparked criticism, the International Court of Justice (ICJ) has recently upheld the absolute immunity of an incumbent Minister of Foreign Affairs under customary law. In the Arrest Warrant of April 11th 2000 (Democratic Republic of the Congo v. Belgium), Judgment, Merits, 41 ILM 536 (2002), the Court held that the issue and circulation, by a Belgium magistrate, of an arrest warrant against an incumbent Minister of Foreign Affairs of the Democratic Republic of Congo failed “to respect the immunity from criminal jurisdiction and the inviolability [of] the incumbent Minister (…) under international law” (para. 78). On the future agenda of the ICJ is the case of Certain Criminal Proceedings in France (Republic of the Congo v. France), which concerns the Republic of Congo's complaint against France that, inter alia, “by attributing to itself universal jurisdiction in criminal matters and by arrogating to itself the power to prosecute and try the Minister of the Interior of a foreign State for crimes allegedly committed by him in connection with the exercise of his powers for the maintenance of public order in his country”, France violated “the principle that a State may not, in breach of the principle of sovereign equality (…) exercise its authority on the territory of another State”. It is further asserted by the Republic of Congo that, in issuing an arrest warrant instructing police officers to examine the President of the Republic of the Congo as witness in the case, France violated “the criminal immunity of a foreign Head of State – an international customary rule recognized by the jurisprudence of the Court”. International Court of Justice Press Release 2003/21, 16 July 2003.

9 Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, General Assembly Res. 3074 (XXVIII), 3 December 1973, para. 7. Art. 14(2) of the Universal Declaration of Human Rights, General Assembly Res. 217 A (III), 10 December 1948, states that individuals have no right to seek asylum from “prosecutions arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.”

10 Rome Statute of the International Criminal Court, 17 July 1998 (entered into force 1 July 2002) [hereinafter “Rome Statute”].

11 The first resolution of this kind was passed on 12 July 2002 in United Nations Security Council Res. 1422 (2002), UN Doc. S/RES/1422 (2002). This resolution requested the International Criminal Court (ICC) to refrain from initiating investigations or proceedings to peacekeepers of States not party to the Rome Statute, while reaffirming its intention to “renew the request (…) under the same conditions each 1 July for further 12 month periods…”. On 12 June 2003, the Security Council approved (12–0, with 3 abstentions from France, Germany and Syria) another one-year exemption for peacekeepers who are nationals of non-party States. United Nations Security Council Res. 1487 (2003), UN Doc. S/RES/1497, 12 June 2003.

12 United Nations Security Council Res. 1497 (2003), UN Doc. S/RES/1497, 1 August 2003. Para. 7 of the resolution provides that “ …current or former officials or personnel from a contributing State, which is not a party to the Rome Statute of the International Criminal Court, shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to the Multinational Force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by that contributing State”.

13 A list of the States who have entered into these bilateral agreements with the US is available on the website of the Coalition for the International Criminal Court, <http://www.iccnow.Org/documents/otherissuesimpunityagreem.html>. 25 of these States are party and 10 are signatories to the Rome Statute.

14 On the theory of transitional justice and how it may accommodate the peculiar needs of transitional societies, see generally D. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime”, The Yale Law journal, Vol. 100, No. 8. 1991, p. 2537; D. Cassel, “Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities”, Law and Contemporary Problems, Vol. 59, 1996, p. 225; N. J, Kritz, (ed.), Transitional justice, Vol. I, Institute of Peace Press, Washington, 1995; N. Roht-Arriaza (ed.). Impunity and Human Rights in International Law and Practice, Oxford University Press, Oxford, 1995; Teitel, op. cit. (note 2), p. 2009; J.Dugard, “Dealing with crimes of a past regime. Is amnesty still an option?”, Leiden Journal of International Law, Vol. 12, No. 4, 1999, p. 1009; P. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, Routledge, London, 2001; S. Ratner and J. Abrams, Accountability for Human Rights Atrocities in international Law: Beyond the Nuremburg Legacy, 2nd ed., Oxford University Press, Oxford, 2001.

15 Voicing a widely agreed statement, the Princeton Principles on Universal Jurisdiction, adopted by a group of international law experts in 2001, proposed that “Amnesties are generally inconsistent with the obligation on states to provide accountability for serious crimes under international law”; Principle 7, Princeton Principles on Universal Jurisdiction 28 (2001), Princeton University Program in Law and Public Affairs, Princeton University, Princeton, 2001. Human rights bodies have come to the same conclusion: Inter-American Court of Human Rights, Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru) 14 March 2001; Rodriguez v. Uruguay, Communication No. 322/1988, UN Human Rights Committee, 19 July 1994; Human Rights Committee General Comment No. 20 on Art. 7 (replacing General Comment 7 concerning prohibition of torture and cruel treatment or punishment, 10 March 1992.

16 For example, amnesties have been negotiated as part of peace deals in Sudan (Sudan Peace Agreement of 21 April 1997), the Democratic Republic of Congo (1999 Lusaka Ceasefire Agreement) and Sierra Leone (Lome Peace Agreement of 8 July 1999), among others, as measures to stop the bloodshed. More recently, the Russian Duma has enacted new amnesty laws as a means to help resolve the conflict in Chechnya: “Total 126 people have applied for amnesty in Chechnya”, Relief Web (source: government of the Russian Federation), 1 July 2003, President Joseph Kabila of the Democratic Republic of Congo has recently signed amnesty laws for Congolese rebels, though war crimes are reportedly not covered. M. Durmmett, “Amnesty for Congolese rebels”, BBC News, <http:news.bbc.co.Uk/go/pr/fr/-/2/hi/africa/2953621.stm>, 16 April 2003.

17 During the past several years, Argentina, Cambodia, El Salvador, Guatemala, Haiti and Uruguay among others have each granted amnesty, as part of the peace arrangement, to members of the former regime that committed international crimes. Roht-Arriaza, N., “State responsibility to investigate and prosecute grave human rights violations in international law”, California Law Review, Vol. 78, 1990, p. 451, pp. 458–61CrossRefGoogle Scholar; US Delegation Draft “State practice regarding amnesties and pardons”, presented to the Preparatory Committee for the Establishment of an International Criminal Court, 4th Sess., August 1997.

18 The most clear example is that of South Africa, where the Promotion of National Unity and Reconciliation Act 34 of 1995 sets up a mechanism to grant a broad amnesty for those who had committed politically motivated crimes during the apartheid regime. See The Azanian Peoples Organization (AZAPO) v. The President of the Republic of South Africa and ors., Case CCT 17/96, (South Africa), 1996 (hereinafter the AZAPO case), para. 22.

19 The “amnesty for truth” argument was also used by the Constitutional Court of South Africa in the AZAPO case to justify the Promotion of National Unity and Reconciliation Act 34 of 1995, Ibid., pp. 683–685. See also Dugard, op. cit. (note 14), p. 1009; A. O'Shea, Amnesty for Crime in international Law and Practice, Kluwer Law International, The Hague, p. 310.

20 Although, as the ongoing trial of the former Yugoslav President Slobodan Milosovic at the ICTY demonstrates, accused persons will still argue that trials for serious violations of human rights, even at the level of international criminal courts, are motivated by political factors rather than by legal considerations. The establishment of the ICC may go some way to removing these types of objections, since it will have jurisdiction over international crimes committed on the territory of any States Parties or over persons who are nationals of States Parties. See Rome Statute, Art. 12.

21 For a thorough analysis of this theory, see generally Orentlicher, op. cit. (note 14) and Teitel, op. cit. (note 2).

22 “Impunity” has been defined as “the impossibility, de jure or de facto, of bringing the perpetrators of human rights violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to them being accused, arrested, tried and if found guilty, convicted”. Question of the Impunity of Perpetrators of Violations of Human Rights (civil and political rights), Final Report prepared by Mr. Joinet pursuant to Sub-Commission Resolution 1996/119, E.CN.4/SUD.2/1997/20, 26 June 1997 [hereinafter “Joinet Report”].

23 Thus, the preamble to the Rome Statute of the International Criminal Court declares at para. 5 that the States Parties are “[d]etermined to put an end to impunity for the perpetrators of [the most serious crimes of concern to the international community] (…) and thus to contribute to the prevention of such crimes”.

24 For example, Boed, R., “The effect of a domestic amnesty on the ability of foreign States to prosecute alleged perpetrators of serious human rights violations”, Cornell International Law Journal, Vol. 33, No. 2, 2000, pp. 297Google Scholar and 323. Some domestic courts have come to the same conclusion. In several cases involving the forcible disappearance of Spanish citizens in Argentina it has been held that Argentina's domestic amnesty is not binding on Spanish courts. For example, Fortunato Galtieri Case, Judgement of March 1997, available at: <http:www.derechos.org/nizkor/arg/espana/authgalt.html>.

25 As Brownlie writes: “…the state must be independent of other state legal orders, and any interference by such legal orders, or by an international agency, must be based on a title of international law.” Brownlie, I., Principles of Public International Law, 5th ed., Clarendon Press, Oxford, 1998, p. 72.Google Scholar

26 Under the principle of the sovereign independence of States, States are not obliged to give effect to the internal laws of other States as this would be an encroachment on their own sovereign independence. See Brownlie, Ibid., p. 72. An example of the same reasoning can be found in the French case of Abetz, where it was held that diplomatic immunity was not relevant to a war crimes prosecution since the legal basis of prosecution rests with offences against the community of nations and as such any domestic interference through grants of immunity would “subordinate the prosecution to the authorization of the country to which the guilty person belongs”; quoted in Paust, J. et al. (eds), International Criminal Law: Cases and Materials, Carolina Academic Press, Durham, 1996 [hereinafter International Criminal Law], p. 78.Google Scholar

27 Art. 31 of the Vienna Convention on the Law of Treaties, of 23 May 1969.

28 For example, Art. 35 of the European Convention on Transfer of Proceedings in Criminal Matters, of 15 May 1972. The UN Model Treaty on Extradition, UN Doc. A/RES/45/116 of 14 December 1990, provides that a request for extradition for a person may be refused if that person has become immune from prosecution or punishment, including by reason of amnesty (Art. 3(e)); see also Articles 10(3), 12(1), and 53 (1)(b)(ii) of the European Convention on the International Validity of Criminal Judgments, of 28 May 1970; and Art. 62(2) of the Convention Applying the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at Their Common Borders.

29 International Criminal Law, op. cit. (note 26), p. 574.

30 Art. 38(1) (c) of the 1945 Statute of the International Court of Justice.

31 Art. 14(7) of the International Covenant of Civil and Political Rights, of 16 December 1966 (which reiterates the ne bis in-idem principle) does not prevent the prosecution, in another State, of a defendant who has benefited from an amnesty in the territorial State, because the procedure for an amnesty does not amount to an “acquittal” within the meaning of that provision. Moreover, the Human Rights Committee has decided that Art. 14(7) does not prohibit trial for the same offence in another State. A.P. v. Italy, Comm. No. 204/1986, 2 November 1987, UN Doc. A/43/40, at 242.

32 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 1, p. 40, para. 174 (Proceedings of the Preparatory Committee during March-April and August 1996) GAOR, 51st Sess. Supp. No. 22, UN Doc. A/51/22); UN.Doc, A/CONF./283/2/Add. 1 (1998), Art. 19.

33 Allied Control Council Law No. 10, 31 Jan. 1946, Art. II.5. The Principles of the Nuremberg Charter and Judgement recognized that even though domestic law “does not impose a penalty for an act which constitutes a crime under international law it does not relieve the person who committed the act from responsibility under international law.”

34 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, General Assembly Res. 2391, 26 November 1968.

35 See text accompanying notes 49–56. On arguments against the international recognition of amnesties for war crimes, see Paust, J., “My Lai and Vietnam: Norms, myths and leader responsibility”, Military Law Review, Vol. 57, 1972, pp. 118–23.Google Scholar

36 The doctrine of necessity would not provide a State with justification to avoid its obligations, unless it could show that prosecution would entail a grave and imminent peril for the State and that the State's sole means to safeguard an essential interest is not to abide by its international legal duty to prosecute. Furthermore, necessity cannot be invoked unless to do so does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. Arguably, the duty to prosecute those accused of war crimes is an essential interest of the international community. See Art. 25 of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission on 29–31 August 2001, ILC, Report on the work of its fifty-third session, 23 April - 1 June and 2 June - 10 August 2001, GAOR Fifty-fifth Sess. Supp. No. 10 (A/56/10) (hereinafter ILC Articles on State Responsibility). The General Assembly took note of the Articles on 12 December 2001 in GA Res. 56/83. To invoke force majeure, a State would need to show that the failure to prosecute arose from the occurrence of an irresistible force or an unforeseen event beyond the control of the State, making it materially impossible to perform the obligation (see ILC Articles, Art. 23, Ibid.). Distress could be invoked only if the failure to prosecute was the only reasonable way, in a situation of distress, of saving the perpetrator's life or the lives of other persons entrusted to the perpetrator's care (see ILC Articles, Art. 24, Ibid.).

37 This argument derives from the principle established in Art. 103 of the Charter of the United Nations which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.

38 Art. 16-of the Rome Statute provides: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

39 The point has been made that the time limit of the deferral (notwithstanding the possibility of renewal) suggests that this is a delaying mechanism only and not a means to achieve a permanent recognition of a domestic amnesty. Gavron, J., “Amnesties in the light of developments in international law and the establishment of the International Criminal Court”, International and Comparative Law Quarterly, Vol. 51, Pt. 1, Jan. 2002, p. 110.CrossRefGoogle Scholar

40 See generally Gowlland-Debbas, V., “The role of the Security Council in the new International Criminal Court from a systemic perspective”, in de Chazournes, L. Boisson and Gowlland-Debbas, V. (eds), The International Legal System in Quest of Equity and Universality, Liber-Americorum Georges Abi-Saab, Martinus Nijhoff Publishers, Kluwer Law International, 2001, pp. 629–650.Google Scholar

41 The resolutions fail to positively identify a “threat to the peace, breach of the peace, or act of aggression” which is a prerequisite for action under Chapter VII of the Charter, merely stating that “it is in the interests of international peace and security to facilitate Member States' ability to contribute to operations established or authorized by the United Nations Security Council”. Security Council Res. 1487 (2003), op. cit. (note 11), preambular para. 7. See UN Charter, Art. 39.

42 The drafting history of Art. 16 suggests that the provision was not meant to be applied prospectively to groups of people, nor to provide for permanent deferral. Rather, it was intended to be applied on a case-by-by basis to specific situations where proceedings before the Court might hamper efforts to restore or maintain peace. At least 116 States expressed criticisms of the resolution during the drafting stages. See Amnesty International, “The International Criminal Court: The unlawful attempt by the Security Council to give US citizens permanent impunity from international justice”, May 2003, Al Index: IOR 40/006/2003. See also Ambos, K., “International criminal law has lost its innocence”, German Law Journal, Vol. 3, No. 10, 1 October 2002Google Scholar; B. MacPherson, “Authority of the Security Council to exempt peacekeepers from International Criminal Court proceedings”, ASIL Insights, July 2002, p. 2.

43 UN Charter, Art. 24(2).

44 1969 Vienna Convention on the Law of Treaties, Art. 53. See also Schweigmann, D., The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice, Kluwer Law International, The Hague, 2001, p. 197.Google Scholar

45 UN Charter, Art. 39.

46 Cowles, W., “Universal jurisdiction over war crimes”, California Law Review, Vol. 33, 1945, p. 177Google Scholar. See generally, Segall, A., Punishing Violations of International Humanitarian Law at the National Level, ICRC, Geneva, 2001, especially pp. 30–38Google Scholar. But see also Brownlie, who argues that the legal consequences of breaches of the laws of war (especially of the Hague Convention of 1907 and the Geneva Conventions of 1949) are not correctly expressed as an acceptance of the principle of universality, since what is punished is the breach of international law. This, he claims, is different from “the punishment, under national law, of acts in respect of which international law gives a liberty to all states to punish, but does not itself declare criminal.” Brownlie, op. cit. (note 25), p. 308. In the Tadic case, Judge Cassese declared in relation to the principle of universal jurisdiction: “This is all the more so [justified] in view of the nature of the offences alleged against the Appellant, offences which, if proven, do not affect the interests of one State alone but shock the conscience of mankind. As early as 1950, in the case of General Wagener, the Supreme Military Tribunal of Italy held: ‘…The Solidarity among nations, aimed at alleviating in the best possible way the horrors of war, gave rise to the need to dictate rules which do not recognize borders, punishing criminals wherever they may be…Crimes against the laws and customs of war cannot be considered political offences, as they do not harm a political interest of a particular State, nor a political right of a particular citizen. They are, instead, crimes of lese-humanite (reati di lesa umanita) and, as previously demonstrated, the norms prohibiting them have a universal character, not simply a territorial one.’ (13 March 1950, in Rivista Penale 753, 757 (Sup. Mil. Trib., Italy 1959; unofficial translation)”, The Prosecutor v. Dusko Tadic, International Tribunal for the Former Yugoslavia, IT-94–1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber, 2 October 1995), p. 57.

47 See for example, in Canada, the Crimes against Humanity and War Crimes Act (2000); in Germany, the International Crimes Act (2002); in Switzerland, the Code pénal militaire 1968; in Nicaragua, the Criminal Code 1974.

48 See for example, Prosecution v. Refik Saric, Third Chamber of the Eastern Division of the Danish High Court, 25 November 1994; Prosecution v. Refik Saric, Supreme Court of Denmark, 15 August 1995, Ugeskrift for Retsvaesen, p. 838; En la cause Fulgence Niyonteze, Tribunal militaire de division 2, Lausanne, 30 April 1999; En la cause Fulgence Niyonteze, Tribunal militaire d'appel 1a, Geneva, 26 May 2000; Tribunal militaire de cassation, Yverdon-les-Bains, 27 April 2001.

49 Articles 50/51/130/147 common to the four Geneva Conventions define the conduct constituting grave breaches of the Conventions. Offences amounting to grave breaches include wilful killing, torture or inhuman treatment, and wilfully causing great suffering or serious injury to body or health. Article 85 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (hereinafter Additional Protocol I) expands the list of grave breaches to include serious violations of the laws and customs of war (sometimes referred to as “Hague Law”), when committed wilfully, in violation of the relevant provisions of Protocol I, and causing death or serious injury to body or health.

50 Articles 49/50/129/146 common to the four Geneva Conventions of 1949 provide: “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention. (…) Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.” Art. 85(1) of Additional Protocol I states that the provisions of the Geneva Conventions relating to the repression of breaches and grave breaches, supplemented by Protocol I, apply equally to the repression of breaches and grave breaches of Protocol I. Art. 86 of Protocol I reaffirms the obligation of States Parties to repress grave breaches, and adds that States must take measures necessary to suppress all other breaches, of the Conventions or of Protocol I which result from a failure to act when under a duty to do so.

51 J. Pictet (ed.), The Geneva Conventions of 12 August 1949, Commentary: IV Geneva Convention (hereinafter Commentary on Geneva Convention IV), ICRC, Geneva, 1960, p. 602Google Scholar. Furthermore, the Commentary states that: “The universality of jurisdiction for grave breaches is some basis for the hope that they will not remain unpunished and the obligation to extradite ensures the universality of punishment.” Ibid., p. 587.

52 Articles 51/52/131/148 common to the four Geneva Conventions of 1949.

53 Commentary on Geneva Convention IV, op. cit. (note 51), p. 603.

54 The Commentary, Ibid., continues, “As the law stands today (…) [o]nly a State can make such claims on another State, and they form part, in general, of what is called ‘war reparations’.” Principle 15 in a UN text on the right to reparation proposes that judicial or administrative sanctions or “a judicial decision restoring the dignity, reputation and legal rights of the victim and/or of persons connected with the victim” may constitute satisfaction as part of reparations. Revised Set of Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, prepared by Mr. Theo van Boven pursuant to decision 1995/117 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1996/17, 24 May 1996.

55 See Segall, op. cit. (note 46), especially pp. 30–38.

56 As Oppenheim writes, “If a State (…) possess[es] such rules of Municipal Law as it is prohibited from having by the Law of Nations, it violates an international legal duty.” L. Oppenheim in H. Lauterpacht (ed.). International Law, 8th ed., 1955, p. 45; 1969 Vienna Convention on the Law of Treaties, Art. 27; Polish Nationals in Danzig, 1931 PCIJ (ser. A/B) No. 44, p. 24; Fisheries (United Kingdom v. Norway), ICJ Reports 1951, 116 at 132; Nottebolm (Liechtenstein v. Guatemala), ICJ Reports 1955, 4 at 20–21.

57 At 25 August 2003 there were 203 States party to the Geneva Conventions of 1949.

58 See the ICRC Advisory Service compilation of national implementation mechanisms of international humanitarian law, available at: <http://www.gva.icrc.org/ihl-nat>.

59 During the negotiations in Rome on the list of war crimes to be included in the Statute of the International Criminal Court, States strongly disagreed on the customary status of the rules in Additional Protocol I. See 1995 Ad Hoc Committee Report, para. 74, and 1996 PrepCom Report, Vol. I, para. 81.

60 Art. 3 of the 1907 Hague Convention IV concerning the Laws and Customs of War does, however, specify a duty for the State to pay compensation for violations committed by persons in its armed forces.

61 International Military Tribunal, Trial of the Major War Criminals, 14 November 1945, 1 October 1946, Vol. 1, Nuremberg, 1947, p. 254Google Scholar. The International Military Tribunal also pointed out that: “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Ibid., reproduced in the American journal of International Law, Vol. 41, 1947, pp. 220–221.Google Scholar

62 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Security Council Res. 827 (1993), UN Doc. S/RES/827, 25 May 1993 (hereinafter ICTY Statute), Art. 3.

63 von Hebel, H. and Robinson, D., “Crimes within the jurisdiction of the Court”, in Lee, R. (ed.), The International Criminal Court, The Making of the Rome Statute: Issue, Negotiations, Results, Kluwer Law international, The Hague, 1999, p. 122.Google Scholar

64 Some norms were deleted from the Statute on the ground that a violation of the rule was not serious enough to come before the Court. For example, the prohibition of “unjustifiable delay in the repatriation of prisoners of war or civilians”, which is a grave breach under Art. 84(4) (b) of Additional Protocol I. See 1995 Ad Hoc Committee Report, para. 72, and 1996 PrepCom Report, Vol. I, para. 74.

65 During the negotiations in Rome on war crimes for the Statute of the International Criminal Court, there was no-disagreement that the norms laid down in the Hague Conventions and Regulations gave rise to individual criminal responsibility under customary international law. See 1995 Ad Hoc Committee Report, para. 74, and 1996 PrepCom Report, Vol. I, para. 81.

66 Art. 17(1)(a) of the Rome Statute provides: “…the Court shall determine that a case is inadmissible where [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

67 According to Art. 17(3) of the Rome Statute, in order to determine inability in a particular case, “the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”

68 According to Art. 17(2) of the Rome Statute, in order to determine unwillingness, the Court “shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”

69 Admittedly, this argument can be fairly easily refuted by the objectives of the Rome Statute as expressed in the preamble, which states in para. 4 that “serious crimes of concern to the international community as a whole must not go unpunished”. Even so, care must be taken not to overstretch the interpretation of the legal obligations contained in treaties by too much deference to the non-binding preamble.

70 Rome Statute of the International Criminal Court, preambular para. 6.

71 The assertion of a general duty to prosecute for serious international crimes has been made in a host of United Nations resolutions, reports of Special Rapporteurs and other UN texts. See for example, UN Commission on Human Rights Res. 2002/79 on Impunity in which the Commission explicitly recognizes that “amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges States to take actions in accordance with their obligations”. Furthermore, “crimes such as (…) war crimes (…) are violations of international law and (…) perpetrators of such crimes should be prosecuted or extradited by States, (…) all States [are urged] to take effective measures to implement their obligations to prosecute or extradite perpetrators of such crimes”. Ibid., para. 2.

72 For a comprehensive analysis, see Roht-Arriaza, op. cit. (note 14), esp. pp. 28–40.

73 See von Hebel and Robinson, op. cit. (note 63), pp. 109–118. A few acts defined as grave breaches in Additional Protocol I were not included in the Statute, such as Art. 85(3)(c) on attacks against works or installations containing dangerous forces and Art. 85(4)(b) on unjustifiable delay in the repatriation of prisoners of war or civilians.

74 For example; Art. 8(2)(b)(i) (attacks against civilians) is a mix of Art. 85(3)(a) and Art. 52(1) and (3) of Additional Protocol I; Art. 8(2)(b)(ii) (attacks against civilian objects) is based on Art. 52(1) of Additional Protocol I; Art. 8(2)(b)(iii) (attacks against humanitarian or peacekeeping missions) is based on Art. 85(3)(b) together with Arts 35(3) and 55(1) of Additional Protocol I; Art. 57 of Additional Protocol I was largely used to define proportionality in Art. 8(2)(b)(iv); Art. 8(2)(b)(xxvi) (conscription of children under 15) is based on Art. 77(2) of Additional Protocol I and Art. 38 of the Convention on the Rights of the Child of 1975.

75 For example, Art. 8(2)(b)(iii) prohibiting intentionally directing attacks against United Nations personnel and material involved in a humanitarian assistance or peacekeeping mission “as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict” and Art. 8(2)(b)(xxii) prohibiting crimes of sexual violence “also constituting a grave breach of the Geneva Conventions”. The latter phrase has the purpose of affirming that sexual violence can constitute a grave breach. It should be noted that both types of violations, although never listed as war crimes in treaties prior to the Rome Statute, are already covered by customary prohibitions and therefore are not new crimes as such.

76 The threshold was first proposed by the United States in 1997. A particular concern of the United States, among other States, was that the Court should not have jurisdiction over isolated cases of war crimes which might be committed, for example, by American peacekeepers during an operation mandated by the United Nations.

77 Von Hebel and Robinson, op. cit. (note 63), p. 108. The original proposal which provided that the Court shall have jurisdiction over war crimes “only when committed as part of a plan or policy or as part of a largescale commission of such crimes” was then replaced by “only when committed…” before being watered down to “in particular when committed…”. As von Hebel and Robinson point out, this language implies that “Article 8(1) may be best described as a (…) guideline rather than a threshold”, Ibid., p. 124.

78 See notes 166–174 and accompanying text.

79 Planner, D., “The penal repression of violations of international humanitarian law applicable in non-international armed conflict”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, Vol. 30, 1990, p. 414.Google Scholar

80 Graditzky, T., “Individual criminal responsibility for violations of international humanitarian law committed in non-international armed conflicts”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, Vol. 322, 1998, pp. 29–56Google Scholar; Meron, T., “International criminalization of internal atrocities”, American Journal of International Law, Vol. 89, 1995, p. 554Google Scholar. The ICJ in the Nicaragua case in 1986 noted the customary character of common Art. 3 of the Geneva Conventions: Military and Paramilitary Actitivies in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, pp. 113–114, para. 218.

81 ICTR Statute, Art. 4, Annex to Security Council Res. 955 (1994), S/RES/955 (1994), 8 Nov. 1994.

82 Prosecutors. Dusko Tadic, Appeals Chamber of the ICTY, 2 October 1995, para. 137, 35 LL.M. 32 (1996).

83 Rome Statute, Art. 8(2)(c) and (e).

84 See Dinstein, Y., “The universality Principle and war crimes”, in Schmitt, M. and Green, L. (eds), The Law of Armed Conflict: Into the Next Millenium, International Law Studies, Vol. 71, Naval War College, Newport, R.I., 1998, pp. 17 and 21Google Scholar. See also the 1999 resolution of the United Nations Commission on Human Rights on Sierra Leone which “[r]eminds all factions and forces in Sierra Leone that in any armed conflict, including an armed conflict not of an international character, the taking of hostages, wilful killing and torture or inhuman treatment of persons taking no active part in the hostilities constitute grave breaches of international humanitarian law, and that all countries are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches and to bring such persons, regardless of their nationality, before their own courts.” UN Commission on Human Rights Res. 1999/1, 6 April 1999 (emphasis added).

85 Most commentators on the negotiations of the Rome Statute note that the list of crimes relating to internal armed conflicts was among the most controversial issues to be decided on. While the inclusion of common Article 3 was eventually able to achieve general acceptance at the Rome Conference, there was continued opposition to the inclusion of most of the other norms. See von Hebel and Robinson, op. cit. (note 63), p. 125.

86 The ICRC commentary on this article states that “[a]mnesty is a matter within the competence of the authorities” and that “[t]he object of this sub-paragraph is to encourage gestures of reconciliation which can contribute to re-establishing normal relations in the life of a nation which has been divided”. ICRC Commentary on Protocol II of 1977 to the Geneva Conventions of 1949, paras 4617 and 4618, available at: <http://www.icrc.org>.

87 For example, Guevara Portillo Case, Salade lo Penal de la Corte Suprema de justicia, San Salvador (16 August 1995), p. 11; AZAPO case, op. cit. (note 18), p. 53; Romo Mena Case, Corte Suprema de Chile (26 October 1995), p. 12.

88 1969 Vienna Convention on the Law of Treaties, Art. 31(1).

89 Additional Protocol II, Art. 1 and preambular para. 1.

90 Roht-Arriaza and Gibson also argúe that the phrase could be interpreted as meaning “‘the broadest possible amnesty’ without destroying victims' hopes and needs for retribution and denunciation, or ‘the broadest possible amnesty’ without causing social unrest because of the injustice in letting these criminals go free”. See Roht-Arriaza, N. and Gibson, L., “The developing jurisprudence on amnesty”, Human Rights Quarterly, Vol. 20, 1998, p. 866.CrossRefGoogle Scholar

91 Letter of the ICRC Legal Division to the ICTY Prosecutor of 24 November 1995 and to the Department of Law at the University of California of 15 April 1997.

92 Ibid. During the debate at the Diplomatic Conference negotiating Protocol II, the delegate for the Soviet Union stated that draft Article 10 (which became Article 6) of Protocol II “could not be construed as enabling war criminals, or those guilty of crimes against peace and humanity, to evade severe punishment in any circumstances whatsoever.” Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977, Vol. 9. Federal Political Department, Berne, 1978, p. 319.

93 Inter-American Commission on Human Rights, Report No. 199, Case 10, 480, Lucio Parada Cea and ors. (El Salvador), 27 January 1999, para. 115.

94 UN Doc. CCPR/C/79/Add.78, para. 12 (concerning the amnesty for human rights violations committed against civilians during the civil war in Lebanon).

95 Ex parte Mudd, manuscript opinion of Judge Boynton, 9 Sept. 1868, 17 F. Cas. 954 (S.D. Fla. 1868) (No. 9, 899), (concerning petition for habeus corpus for civilians convicted by military commission for complicity in assassination of President Lincoln). In response to the petitioners' contention concerning the presidential proclamation of amnesty of 4 July 1868, the court stated, “But that proclamation plainly excludes (…) petitioners, whether they have been convicted or not. It pardons the crime of treason (…) but it pardons no person who has transgressed the laws of war – no spy, no assassin, no person who has been guilty of barbarous treatment to prisoners (…). Such a provision would refer to those prisoners who had made open and honorable war and transgressed the fearfully wide rules which war allows to be legal.” Quoted in International Criminal Law, op. cit. (note 26), p. 252.

96 On the legal value and consequences of common Art. 1 of the Geneva Conventions, see generally de Chazournes, L. Boisson and Condorelli, L., “Common Article 1 of the Geneva Conventions revisited: Protecting collective interests”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, Vol. 82, No. 837, March 2000, pp. 67–86.Google Scholar

97 Ibid., p. 69.

98 Nicaragua case, op. cit. (note 80), para. 220.

99 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, para. 79.

100 Ibid.

101 Boisson de Chazournes and Condorelli, op. cit. (note 96), p. 75.

102 The Prosecutors v. Dusko Tadic, ICTY Appeals Chamber, judgment, The Hague, 15 July 1999, Case No. IT-94–1.

103 Boisson de Chazournes and Condoreili, op. cit. (note 96), p. 85.

104 Paust, in “My Lai” op. cit. (note 35) has made the salient point that: “[i]nternational law is based upon common expectations of the human community and does not solely become operative when in conformity with one state's notions of ‘just wars’ orother political conclusions of a nation (…). This is due to the fact that international legal norms have a universal character or value content, and these human expectations cannot be ignored on the basis of local self interest. (…). Today, as the human society is forced to exist on the basis of the sovereign state system it can be argued that it is the duty of the sovereign to execute community legal expectations.”

105 Art. 2(1) of the International Covenant on Civil and Political Rights, 16 December 1966; Art. 1(1) of the American Convention on Human Rights, 7 January 1970; Art. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950.

106 Report of the Human Rights Committee, 37 UN GAOR Supp. (No. 40) Annex V, general comment 7(16), para. 1, UN Doc. E/CN.4/Sub.2/Add.1/963 (1992).

107 Inter-American Court of Human Rights, Case Velasquez Rodriguez, judgment of 29 July 1988, Series C, No. 4, para. 166.

108 Ireland v. U.K., 25 Eur. Ct. H.R., para. 239 (ser. A) (1978).

109 Mrs. W. v. United Kingdom, 32 Collection of Decisions 190, 200 (Feb. 28, 1983).

110 Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, op. cit, (note 6), para. 1.

111 Quoted in Paust, J., “Universality and the responsibility to enforce international criminal law: No sanctuary for alleged Nazi war criminals”, Houston Journal of International Law, Vol. 11, 1989, pp. 337–40Google Scholar, reproduced in International Criminal Law, op. cit. (note 26), p. 75.

112 Art. 53 of the 1969 Vienna Convention on the Law of Treaties provides a definition of a jus cogens or peremptory norm of international law: “a peremptory norm of general international law is a norm āccepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” In the Barcelona Traction case (Second Phase), the ICJ drew the distinction between obligations of a State arising vis-a-vis another State and obligations “towards the international community as a whole”, saying: “[s]uch obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”. ICJ Reports 1970, 3 at p. 32. See also East Timor Case (Portugal v. Australia), ICJ Reports 1995, 90 at p. 102.

113 The International Law Commission gave the following examples of treaties which would violate Art. 53 of the Vienna Convention on the Law of Treaties: “(a) a treaty contemplating an unlawful use of force contrary to the principles of the [UN] Charter; (b) a treaty contemplating the performance of any other act criminal under international law; and (c) a treaty contemplating or conniving at the commission of such acts, such as trade in slaves, piracy or genocide, in the suppression of which every State is called upon to co-operate (…) treaties violating human rights, the equality of States or the principle of self-determination were mentioned as other possible examples”: Yearbook of the ILC 1966, Vol. II. p. 248.Google Scholar

114 In the Nicaragua case, the ICJ found that Article 3 common to the Geneva Conventions represented a customary rule of international law, adding that the rules reflect “elementary considerations of humanity” Nicaragua case, op. cit. (note 80), p. 104. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court recognized that the “fundamental rules [of humanitarian law] are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of customary law.” op. cit. (note 99), p. 257, para. 79. Some judges went further and clearly stated in separate opinions that the rules of war have acquired the status of jus cogens; see Weeramantry l, p. 496, President Bedjaoui, p. 273, Koroma J, p. 574. In the Haas and Priebke cases, Military Court of Appeal of Rome/Supreme Court of Cassation, 7 March 1998/16 November 1998, the judgments describe the principle of the non-applicability of statutory limitations to war crimes as a peremptory norm of general international law, necessarily implying that war crimes also have a jus cogens nature. See also, Cassese, A., “On the current trends towards criminal prosecution and punishment of breaches of international humanitarian law”, European journal of International Law, Vol. 9, No. 1Google Scholar; Gasser, H-P., “International humanitarian law”, in Haug, H. (ed.), Humanity for All, Henry Dunant Institute, Paul Haupt Publishers, Berne, 1993, at p. 556Google Scholar; Bassiouni, C., “International crimes jus cogens and obligatio erga omnes”, in Joyner, C. and Bassiouni, C. (eds), Reining in Impunity for International Crimes and Serious Violations of Fundamental Rights, Association Internationale de Droit Pénal, Ramonville-St.-Agne, 1998, at p. 267.Google Scholar

115 Prosecutor v. Anto Furundzija, Judgement, IT–95–17/1-T, 10 December 1998.

116 Ibid., paras 153–157. The Court also found that other consequences include the fact that torture may not be covered by a statute of limitations, and must not be excluded from extradition under any political offence exemption. Ibid., para. 153.

117 Ibid., para. 156, citing the Supreme Court in Eichmann and the USA Court in Demjanjuk. Attorney- General of the Government of Israel v. Adolf Eichmann, 36 ILR 298; In the Matter of the Extradition of John Demjanjuk, 612 F. Supp.544, 558 (N.D. Ohio 1985). The Court also refers to Demjanjuk v. Petrovsky, 776 F. 2d 571 (6th Cir. 1985), cert. Denied, 475 U.S. 1016 S. Ct. 1198, 89 L. Ed. 2d 312 (1986) for a discussion of the universality principle as applied to the commission of war crimes.

118 Bassiouni, “International Crimes”, op. cit. (note 114), writes at p. 265: “Legal obligations which arise from the higher status of such crimes include the duty to prosecute or extradite (…)”; see also Cassese, op. cit. (note 114); Paust, “Universality”, op. cit. (note 111), at pp. 337–40.

119 Bassiouni, “International Crimes”, op. cit. (note 114), p. 266.

120 Commentary to Geneva Convention VI, op. cit. (note 51), pp. 587–602.

121 For example, the Inter-American Court of Human Rights has held that the “essential” guarantees which are not subject to derogation under the American Convention on Human Rights include habeas corpus, amparo, and any other effective remedy which is designed to guarantee respect for the non-derogable rights and freedoms in the Convention. Judicial Guarantees in States of Emergency, Advisory Opinion OC-9/87 of 6 October 1987, Inter-Am. Ct. H.R. (Ser. A) No. 9 (1987) at 41. in the Case of Barrios Aitos, the Court stated, “it is unacceptable to use amnesty provisions (…) as a means of preventing the investigation and punishment of those responsible for gross violations of human rights (…) all of which are prohibited as breaches of nonderogable rights recognized under International Human Rights Law.” Barrios Altos case, op. cit. (note 15), para. 41.

122 The classic example is that of torture of detainees inside police stations, which would be much less likely to occur if habeas corpus was a non-derogable right, because judges would have the chance to see the detainee in person soon after the arrest and would be able to tell if he or she had been incorrectly treated while in custody.

123 The International Law Association has pointed out that the deterrent effect should not be overstated, noting that serious crimes on a massive scale continued to be committed in Kosovo after the Chief Prosecutor of the ICTY had announced her intention of investigating and prosecuting these crimes in a letter addressed to President Milosevic and other senior officers. Letter from Justice Louise Arbour to President Milosevic and other senior officials, ICTY press release JL/PIU/389, 26 March 1999, quoted in International Law Association, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences, Committee on International Human Rights Law and Practice, London Conference 2000, p. 4, available at: <http://www.ila-hq.org.>. During the Second World War, atrocities by German soldiers continued to be committed after the Allies had announced their intention to pursue the perpetrators “to the uttermost ends of the earth”. “Declaration of German Atrocities”, 1 November 1943, Dep't St Bull., Vol. 9, 1943, pp. 310–311.

124 See O'Shea, op. cit. (note 19), for the historical use of amnesties, at pp. 5–23.

125 UN Charter, Art. 103. It could be argued, however, that the customary status of the “prosecute or extradite” rule for grave breaches of the Geneva Conventions is not subject to the same hierarchy of rules under treaty law.

126 The ICTY identified the rationale behind these consequences as follows: “While the erga omnes nature (…) appertains to the area of international enforcement (lato sensu), the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order [jus cogens]”. Furundzija case, op. cit. (note 115), para. 153 (emphasis added). This implies that the nonderogable nature applies only to the norm prohibiting torture.

127 Examples of obligations erga omnes given by the ICJ are rules deriving from the outlawing of acts of aggression and genocide, and the rules and principles concerning the basic rights of the human person, including protection from slavery and racial discrimination. Barcelona Traction, op. cit. (note 112), p. 32; East Timor case, op. cit. (note 112), ICJ Reports 1995, p. 90, at p. 102, para. 29; Legality of the Threat or Use of Nuclear Weapons, op. cit. (note 99), p. 258, para. 83; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v. Yugoslavia), Preliminary Objections, ICJ Reports 1996, p. 595, at pp. 615–616, paras 31–32. In.the Pinochet litigation in the United Kingdom, Lord Hope made the point that the fact that an act has acquired the status of jus cogens under international law “compels all states to refrain from such conduct under any circumstances and imposes an obligation erga omnes to punish such conduct.” Pinochet No. 3, House of Lords 24 March 1999, reproduced in Brody, R. and Ratner, M. (eds), The Pinochet Papers: The Case of Augusto Pinochet in Spain and Britain, Kluwer Law International, The Hague, 2000, pp. 253–4.Google Scholar

128 Barcelona Traction, op. cit. (note 112).

129 ILC Articles on State Responsibility, Art. 48, op. cit. (note 36).

130 According to the ILC Articles, a serious breach involves a “gross or systematic” failure by the responsible State to fulfil the obligation. ILC Articles on State Responsibility, Art. 40(2), op. cit. (note 36).

131 The customary “particular consequences” of serious breaches of peremptory norms are articulated in the ILC Articles on State Responsibility, Art. 41, paras 1 and 2. Art. 41 is without prejudice to the other consequences that a breach may entail under international law (Art. 41(3)). See Nicaragua case, op. cit. (note 80), p. too, para. 188; Legal Consequences for States in the Continuing Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports, 1971, p. 16 at p. 56, para. 126.

132 Furundzija case, op. cit. (note 115), para. 155.

133 For example, this principle was enunciated in relation to any acquisition of territory brought about by force in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, General Assembly Res. 2625 (XXV), para. 10. The validity of the rule was affirmed by the ICJ in the Nicaragua case, op. cit. (note 80), p. 100, para. 188. The ICJ's advisory opinion in the Namibia (South West Africa) case also called for a non-recognition of the situation created by the denial by a State of the right to self-determination, op. cit. (note 131), p. 56, para. 126.

134 Restatement (Third) of the Foreign Relations Law of the United States (1987), para. 702. In Henfield's Case and 1 Op. Att'y Gen. 68, 69 (1797), the Court found that if a State did not initiate prosecution of one reasonably accused of international crime, it was recognized that the State could become an “accomplice” to illegality and be subject to various international sanctions.

135 Orentlicher, op. cit. (note 14), p. 2599.

136 The problem lies in interpreting what is meant by “interests of justice”. The term is undefined. The provision itself states that in making the decision the Prosecutor should take into account the gravity of the offence, the interests of the victims, the age or infirmity of the perpetrator and the role he or she played. However, this list is not exhaustive. Gavron makes the point that while it is potentially arguable that a prosecution that is likely to spark further atrocities is not in the interests of justice, this involves speculating about future events and contradicts the deterrence argument. Gavron, op. cit. (note 39), p. 111.

137 On a discussion of these possible ways to accommodate amnesties within the Rome Statute, see also generally, Scharf, M., “The amnesty exception to the jurisdiction of the International Criminal Court”, Cornell International Law journal, Vol. 32, 1999, p. 507Google Scholar; Wedgwood, R., “The International Criminal Court: An American view”, European Journal of International Law, Vol. 10, 1999, p. 97Google Scholar; Hafner, G., Boon, K., Rübesame, A. and Huston, J., “A response to the American view as presented by Ruth Wedgwood”, European Journal of International Law, Vol. 10, 1999, p. 107.Google Scholar

138 Security Council resolutions 827, S/RES/827 (1993), 27 May 1993, and 955, (1994) respectively. In Security Council resolution 827 (1993) which established the ICTY, the Security Council stated that it was “[convinced that (…) the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim [of putting an end to such crimes] to be achieved and would contribute to the restoration and maintenance of peace.” Security Council resolution 827, preambular para. 6.

139 Statute of the Special Court for Sierra Leone, Art. 10, 16 January 2002.

140 Regulation No. 2001/10 on the Éstablishment of a Commission for Reception, Truth and Reconciliation in East Timor, Schedule 1(4) and Section 22.2, UNTAET/REG/2001/10, 13 July 2001.

141 Art. 40 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 15 January 2001.

142 Judge Mahomed found that “but for a mechanism for amnesty, the ‘historic bridge’ [the negotiated transition to democratic rule] itself might never have been erected.” AZAPO case, op. cit. (note 18), para. 19.

143 The Court only considered the question of whether the provisions of the 1949 Geneva Conventions requiring prosecution for “grave breaches” were applicable (which it held were not), but made no attempt to examine rules relating to genocide, torture, war crimes or crimes against humanity. Given that apartheid has been deemed a crime against humanity by the General Assembly and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, it is surprising that no attempt was made to address the question whether customary international law requires the prosecution of those who commit this crime.

144 See Scharf, “The amnesty exception”, op. cit. (note 138), p. 510.

145 For example, in 1993 the United Nations gave its full support to the Governors Island Agreement which granted full amnesty to members of General Cedras' and Brigadier General Biamby's military regime accused of committing crimes against humanity in Haiti from 1990–1994, The Security Council described the Agreement as “the only valid framework for resolving the crisis in Haiti”. Statement of the President of the Security Council, UN SCOR, 48th Sess., 329th metg., at 26, UN Doc. S/INF/49 (1993). See Scharf, M., “Swapping amnesty for peace: Was there a duty to prosecute international crimes in Haiti?”, Texas International Law journal, Vol. 31, No. 1, 1996, pp. 1–42.Google Scholar

146 For example, although the UN endorsed the 1999 Lomé Peace Agreement ending the civil war in Sierra Leone, which included a broad amnesty, UN Special Representative for Sierra Leone Francis Okelo made an oral disclaimer that the amnesty does not apply to genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. UN Doc. S/1999/836, p. 2, para. 1. See generally, Stahn, C., “United Nations peace-building, amnesties and alternative forms of justice: A change in practice?”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, -Vol. 84, No. 845, 2002, p. 191.CrossRefGoogle Scholar

147 See text accompanying notes 38–45.

148 Teitel explains that transitions imply a paradigm shift in the conception of justice: while in normal times the law maintains law and order, in periods of political upheaval, the legal responses create a “sui generis paradigm of transformative law”. Teitel, op. cit. (note 2), p. 2014.

149 Joinet Report, op. cit. (note 22), Principle 19.

150 Gavron, op. cit. (note 39), p. 111.

151 See, for example, Garay Hermonsilla et al. v. Chile, Case 10.843, Report No. 36/96, Inter-Am, C.H.R., OEA/Ser.L/V/ll.95 Doc. 7 rev. at 156 (1997); Inter-American Commission on Human Rights, Report No. 26/92 (El Salvador), 82nd Sess., OEA/ser. L/V/ll/82 (24 September 1992); Report No. 29/92 (Uruguay), 82nd Sess. OEA/ser. L/V/II.82, Doc. 25 (2 October 1992); Report No. 24/92 (Argentina), 82nd Sess. OEA/ser. L/V/II.82, Doc. 24 (2 October 1992).

152 See Truth and Reconciliation Commission Act 2000 of 22 February 2000 (Sierra Leone) and Art. XXVI of the 1999 Lomé Peace Agreement. See also Briefing Paper on the Relationship between the Special Court and the Truth and Reconciliation Commission, Office of the Attorney General and Ministry of Justice Special Court Task Force, Planning Mission 7–18 January 2002, p. 8.

153 Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, UNTAET/REG/2001/10, 13 July 2001.

154 S. Linton, “KR trials are vital, but won't solve everything”, Phnom Penh Post, Issue 11/26, 20 December 2002 – 2 January 2003.

155 President Karzai of Afghanistan has pledged to set up a truth commission which would seek to uncover the atrocities committed over two decades of war and to seek accountability for perpetrators of past abuses of human rights. See statement by Mary Robinson, United Nations High Commissioner for Human Rights, at the opening of the 58th Session of the Commission on Human Rights, Geneva, 18 March 2002.

156 A. Boraine, “Let the UN put Saddam on trial”, International Herald Tribune, 21 April 2003.

157 Gacaca is a Kinyarwanda term for the grass on which traditional village assemblies used to be held. In practice, it means that individuals from the communities act as “people's judges”. The law instituting the gacaca was adopted on 12 October 2000 by the National Assembly of Transition. See Olson, L., “Mechanisms complementing prosecution”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, Vol. 84, No. 845, 2002, p. 186.CrossRefGoogle Scholar

158 There are approximately 120,000 individuals detained in connection with the 1994 genocide in Rwanda. It is has been estimated that Rwandan national courts and the ICTR would need at least 100 years to try all of them. Ibid.

159 See for example Garay Hermonsilla et at. v. Chile, op. cit. (note 152): “A de facto government lacks legal legitimacy (…). It is not juridically acceptable that such a regime should be able to restrict the actions of the constitutional government succeeding it as it tries to consolidate the democratic system, nor is it acceptable that the acts of a de facto power should enjoy all those attributes that accrue to the legitimate acts of a de jure power.” See also L. Joinet and E. Guisse, “Study on the question of the impunity of perpetrators of human rights violations”, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1993/6, 19 July 1993; Burke-White, W., “Reframing impunity: Applying liberal international law theory to an analysis of amnesty legislation”, Harvard International Law journal, Vol. 42, No. 2, 2001, p. 479.Google Scholar

160 See Buck, V., “Droit espagnol”, in Cassese, A. and Delmas-Marty, M. (eds), Juridictions nationales et crimes internationaux, Presses Universitaires de France, Paris, 2002, pp. 154–155.Google Scholar

161 The Permanent Court of International Justice referred to the “well-known rule that no one can be judge in his own suit” in the 1925 Frontier between Iraq and Turkey case. Art. 3, para. 2 of the Treaty of Lausanne (frontiers between Turkey and Iraq), 1925 PCIJ (ser. B), No. 12, p. 32 (Nov. 21, 1925).

162 See Inter-American Commission on Human Rights, Report No. 133/99, Case 11, 725 Carmelo Soria Espinoza (Chile), 19 November 1999, para. 76; Case of Barrios Altos, op. cit. (note 15), para. 41: “States parties to the Convention who adopt (…) self-amnesty laws, are in breach of articles 8 and 25 of the Convention. Self-amnesty laws leave victims defenceless and perpetuate impunity and are therefore clearly incompatible with the letter and spirit of the American Convention.”

163 E.g. UNGA Res/36/13, 28 October 1981, and A/Res/37/47, 3 December 1982.

164 E.g. UNGA Res/48/159, 20 December 1993.

165 See Ratner and Adams, op. cit. (note 14), p. 338.

166 See Orentlicher, op. cit. (note 14), p. 2601. Campbell, on the other hand, has argued that since exemplary trials mean only a small number of trials, individual violators will know that the chances of being punished are remote, and the deterrent value will be correspondingly low. C. Campbell, “Peace and the laws of war: The role of international humanitarian law in the post-conflict environment”, International Review of the Red Cross, No. 839, 2000, p. 630.

167 Art. 1 of the Statute of the Special Court for Sierra Leone, op. cit. (note 140); Art. 1 of the Law on the Establishment of Extraordinary Courts of Cambodia, op. cit. (note 142). With regard to the phrase “those bearing, the greatest responsibility” in the Statute of the Special Court for Sierra Leone, the UN Secretary-General has stated that it “does not mean that the personal jurisdiction is limited to the political and military leaders only. Therefore, the determination of the meaning of the term ‘persons who bear the greatest responsibility’ in any given case falls initially to the Prosecutor and ultimately to the Special Court itself.” Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/40. This clarification is important, as it avoids the criticism that selective prosecutions which elevate official status over traditional understandings of criminal liability vitiate the principle that that the level of fault should determine criminal responsibility. See Teitel, op. cit. (note 38), p. 2041.

168 See notes 112–136 above and accompanying text.

169 See notes 135–136 above and accompanying text. Drentlicher, op. cit. (note 14), p. 2599.

170 See note 8.

171 For example, Lord Brown-Wilkenson in Pinochet No. 3, op. cit. (note 127), said: “A former head of state cannot show that to commit an international crime is to perform a function which international law protects by giving immunity.” In the Greek case of Prefecture of Voiotia v. Federal Republic of Germany, dealing with violations of Articles 43 and 46 of the Hague Regulations which the Court found to be jus cogens crimes, the court of first instance found that when a State breaches a jus cogens crime, there is a tacit waiver of sovereign immunity. Furthermore, recognition of immunity would amount to collaboration in the crimes. Thirdly, violations of jus cogens norms cannot be a source of legal rights. Case No. 11/2000, Areios Pagos (Hellenic Supreme Court), 4 May 2000, reported by Gavouneli and Banktekas in the American journal of International Law, Vol. 95, 2001, p. 198.

172 In the possible upcoming case before the ICJ concerning the international arrest warrant issued by the Special Court for Sierra Leone against former Liberian President Charles Taylor, the ICJ will first have to decide whether the nature of the Special Court, based on an agreement between the government of Sierra Leone and the United Nations, is equivalent to that of an international criminal court. According to the ICJ in the Arrest Warrant case, “certain international criminal courts” may constitute an exception to the principle of immunity of incumbent high-ranking State officials. Arrest Warrant case, op. cit. (note 8), para. 61. If the ICJ finds that the Special Court is binding only on Sierra Leone and the United Nations, in spite of the Security Council's support for the Court, the ICJ will then have the opportunity to assess the import of the jus cogens nature of the crimes of which Taylor is accused for his possible immunity under customary international law.

173 The fact that the ICJ listed a number of exceptions to the immunities principle in the Arrest Warrant case indicates that this customary principle is not a peremptory norm of jus cogens and should therefore be derogated from when in conflict with a peremptory norm of jus cogens.