An Investigation of the Duty of States to Prosecute International Crimes and the Question of Amnesty

Mhagama, Martin Jonas (2013) An Investigation of the Duty of States to Prosecute International Crimes and the Question of Amnesty. Masters thesis, The Open University of Tanzania.

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Abstract

This study investigated the duty of States to prosecute international crimes and the question of amnesty, with a focus on Africa as a case study. The study focuses specifically on the controversial question of granting amnesty to perpetrators of international crimes. Principally, international law both customary and conventional, imposes on states the duty to prosecute and punish international crimes while amnesty does not bar the prosecution of persons responsible for international crimes. The obligation to prosecute accused persons and punish those found guilty for international crimes arise from International Conventions to which a state is party. These include the 1949 Geneva Conventions and 1977 Additional Protocols, the Conventions on the Crime of Genocide and Convention against Torture and Other Cruel. Others are the Inhumane or Degrading Treatment or Punishment, The Rome Statute of the ICC and Human Rights Conventions like International Convention on Civil and Political Rights. States' obligation to prosecute and punish those responsible for committing certain violations establishes a minimal requirement of accountability from the idea that prosecution tied to punishment is the best method in all circumstances for achieving the legitimate goals of a criminal justice system. On the other side of restorative justice, only those amnesty laws which are promulgated for the purpose of ending or preventing a war or a protracted period of serious violence or otherwise to facilitate social transition and reconciliation and not those granted in order merely to shield former leaders from criminal liability have been considered as legitimate. It is now apt to conclude that amnesty cannot prevail over prosecution particularly where international crimes are involved.

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