The duty to “respect and ensure”

It is sometimes argued that a state’s duty to prosecute international crimes can be derived from human rights treaties, namely from the state’s duty to “respect and ensure”.⁵⁵¹ Indeed, crimes of genocide, crimes against humanity and war crimes constitute grave violations and abuses of human rights, including the violation of the right to life, the right to physical and moral integrity, the right to be free from discrimination on the grounds of ethnic origin and to be protected from incitement to such discrimination. As for torture, it is expressly prohibited by international and regional human rights instruments, including the ICCPR,⁵⁵² the ECHR,⁵⁵³ the ACHR,⁵⁵⁴ and the African Charter of Human and People’s Rights.⁵⁵⁵

Human rights instruments do not explicitly impose an obligation upon states to prosecute or punish alleged offenders. The ICCPR, for instance, is silent

“It was suggested that greater attention should be paid to the relationship between universal jurisdiction and acts concerning prohibitions or acts which had a jus cogens character. In particular, it was necessary to determine whether crimes whose prohibition rose to the level of jus cogens were subject to the exercise of universal jurisdiction, and whether such jurisdiction was optional or compulsory.”, UNGA, A/65/18129, July 2010, §26; See also the position of the UK House of Lords in Pinochet (Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No.3) [1999]

2 WLR 827): “The concept of obligation erga omnes is used to widen the power of states to complain about the infringement of an obligation in international law but does not confer jurisdiction on international or national tribunals where it does not otherwise exist.”

550 Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press, 2008), at 113.

551 See Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2010), at 70; Schabas argues that “the most compelling authority for a duty to prosecute now comes from international human rights law, where there is an obligation to punish not only international crimes but also all serious crimes against the person”, Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), at 45.

552 Art. 7 ICCPR.

553 Art. 3 ECHR.

554 Art. 5(2) ACHR.

555 Art. 5 of the African Charter.

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on the question of whether a duty to prosecute applies to violations of the Covenant. However, Article 2 § 1, requires each state party “to ensure to all individuals (…) the rights” recognized in the Covenant.⁵⁵⁶ Likewise, Article 1(1) of the American Convention on Human Rights states that “the States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms […]”. Some legal commentators have argued that this “duty to ensure” implies a duty to prosecute the violators.⁵⁵⁷ In its General Comment 31 on the Nature of the General Legal Obligation on States Parties to the Covenant, the Human Rights Committee held:

8. The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However, the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.

[…]

10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh

556 J. Wouters, The Obligation to Prosecute International Law Crimes (2005), available online at http://www.law.kuleuven.be/iir/nl/onderzoek/opinies/obligationtoprosecute.pdf.

557 See for instance M. Scharf, ‘The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes’, 59(4) Law and Contemporary Problems (1996) 41-61, at 48, and N.

Roht-Arriaza, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations’, 78(2) California Law Review (1990) 449-513, and D. F. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, 100(8) The Yale Law Journal (1991) 2537-2615, at 2568.

session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party.⁵⁵⁸

This position may also be supported by some of the case law of the Inter-American Court of Human Rights.⁵⁵⁹ In the Velasquez v. Honduras case,⁵⁶⁰ the Court held that “the state has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”⁵⁶¹ In the more recent Barrios Altos case – a leading judgment on amnesties⁵⁶² – the Court held that there is an unconditional duty to investigate and punish those responsible for violations of non-derogeable rights.⁵⁶³

As for the European Court of Human Rights, in the 2003 MC v. Bulgaria case, it reiterated that “the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals”.⁵⁶⁴ It held that “States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution.”⁵⁶⁵ In the 2005 Siliadin v. France case, recalling MC v. Bulgaria, the Court held that it necessarily follows from Article 4 ECHR, prohibiting human trafficking, “that States have positive obligations, in the same way as under Article 3 for example, to adopt criminal-law

558 Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004).

559 Cryer et al., supra note 550, at 71.

560 The case concerned the arrest, torture and execution of of a Honduran student activist by the Honduran military. The Inter-American Court found the Hugarian government guilty of violating the American Convention.

561 Inter-American Court of Human Rights, Judgment, Velasquez Rodriguez, 29 July 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), § 174.

562 Seibert-Fohr, Prosecuting Serious Human Rights Violations, at 100.

563 See Seibert-Fohr, Prosecuting Serious Human Rights Violations, at 101; Inter-American Court of Human Rights, Judgment, Barrios Altos v. Peru, 14 March 2001, § 41.

564 ECtHR, M.C. v. Bulgaria, Judgment, Application no. 39272/98, 4 December 2003, § 149.

565 Ibid., § 153.

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provisions which penalise the practices referred to in Article 4 and to apply them in.”⁵⁶⁶