The State’s duty to prosecute under the principles of International Law and Human Rights
Paper presented at the 2013 CLEA Conference in Durban
University of Kent
The expectation that States have a duty under international law to investigate, prosecute and punish perpetrators for core international crimes are of major concern to the international community. The same duty is also required for serious human rights violations such as torture, cruel and in human or degrading treatment; extra-judicial, summary or arbitrary executions, enforced disappearances and gender-specific offences such as rape. The development of international law and the need to protect human rights are closely related to States’ obligations under customary international law to criminalize, prosecute and punish those responsible for international crimes. According to Article 38 (1) of the ICJ Statute, International Customary law is an evidence of general practice accepted as law and any breach inconsistent with the State practice should not be recognized. Despite States’ obligations a customary rule reflecting the duty to prosecute has not fully crystallized within the general principle of international law and human rights field.
Considering a document such as the Rome Statute the preamble to the document affirms that State parties need to ensure that the most serious crimes do not go unpunished by taking measures at the national and international levels. But the Statute fails to impose the duty to prosecute in any of its subsequent articles. Secondly, the same preamble lays down the need for State inter-cooperation to submit alleged perpetrators to the ICC or competent authorities for prosecution without including it in any of its articles. Thirdly, another gap is the lack of an article which stipulates that States domesticate and criminalize the crimes contained in the Rome Statute in their national legislations.
It is clear that crimes that are considered peremptory international law norms have erga omnes obligations such as the prohibition of torture and are intransgressible principles of customary international law.