oa Comparative and International Law Journal of Southern Africa - The Promotion of National Unity and Reconciliation Act, the constitution and international law
|Article Title||The Promotion of National Unity and Reconciliation Act, the constitution and international law|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 Howard University, Washington|
|Publication Date||Nov 1995|
|Pages||338 - 362|
|Keyword(s)||Derogation, International humanitarian law, International offences, Jus cogens norms, Promotion of National Unity and Reconciliation Act, South Africa and War crimes|
A number of sociological and political factors prompted the adoption of the Promotion of National Unity and Reconciliation Act. This article investigates the various provisions of the Act against the principles of international law and argues that many of these provisions are inconsistent with peremptory norms of international law and therefore void. The Act, to the extent that it grants amnesty to war crimes violates a cardinal rule of international humanitarian law, namely that there can be no amnesty for war crimes. Regardless of sociological and political judgments of political actors, international law imposes an obligation on states to prosecute individuals who are alleged to have committed war crimes. This obligation is a superior norm of international law which cannot be compromised to political expediency. Similarly, in suspending and cancelling any civil action that victims of war crimes may bring against alleged offenders, the Act violates a peremptory norm of international law which provides rights to individual victims of war crimes regardless of the attitude of the state.
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