The right and obligation to prosecute in terms of the Genocide Convention, the Convention against Torture and the Geneva Convention III : a comparative analysis

Abstract

The atrocities humanity witnessed through the Two World Wars led to an uproar from States that pushed the international community to do everything in its power to ensure offences related to wars are investigated and that justice prevails. Thus, multiple Conventions were drafted as a way of providing for the successful prosecution of such crimes. The aim of this study is to analyse the articles dealing with the right, as well as the inherent obligation, to prosecute under three key international Conventions, these being - the Geneva Convention III, the Genocide Convention and the Convention Against Torture. A thorough comparative analysis is conducted with the aim of highlighting the differences embodied by the three Conventions, such as those of criminalizing offences under national law and expressly providing for the extradition of those accused of international core crimes. The importance attributed to the prosecution of three core crimes by each Convention, as well as the obligations of States adhering to said Conventions emerge throughout this study. As a result, elements which hinder prosecution of core crimes are also discussed, including the lack of having universal jurisdiction as an absolute principle and certain other procedural elements hindering the complete process of prosecution, namely the lack of judicial enforcement, which ultimately leads to the conviction of the perpetrators; whilst underscoring the future progress which still must be made. Consequently, this dissertation proposes that unless there is an expansion of the International Criminal Court’s ability, empowering it to carry out prosecutions without relying too heavily on State action, coupled with a further expansion of the concept of universal jurisdiction in order for it to become absolute under International Law, justice for victims of core crimes will never be linear and fair.