2. Conceptualizing Amnesty Provisions and Frameworks Amnesty is not explicitly defined in international law and there is no treaty or international instrument on amnesty. It is nevertheless commonly acknowledged as a legal measure that preempts the prosecution of identified crimes. An Office of the High Commissioner for Human Rights (OHCHR) document provides the following definition:6 "Legal measures that have the effect of: (a) Prospectively barring criminal prosecution and, in some cases, actions against certain individuals or categories of individuals in respect of specific criminal conduct committed before the amnesty’s adoption; or (b) Retroactively nullifying legal liability previously established." In that respect, an amnesty cannot prevent legal liability for conduct that has not taken place yet because this would be an invitation to violate the law. Even though no international treaty requires or forbids amnesty, there is an international obligation for States to prosecute certain serious international crimes.7 International legal norms generally require prosecution of at least those who bear primary responsibility for most important international crimes such as the core war crimes, genocide, and torture. The principle is laid down, for example, in the context of international armed conflict for grave breaches under the 1949 four Geneva Conventions. In addition, the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, respectively entail an obligation for state parties to prosecute crimes of torture and genocide. The Statute of the International Criminal Court also creates an obligation for States to investigate and prosecute core international crimes, and the Court itself can intervene if States do not respect this obligation.8 It is to be noted that Zimbabwe is currently a member of the Geneva Conventions I-IV, Additional Protocols (ratified 1992), the Genocide Convention (1991) and the Rome Statute of the ICC (1998). In addition, key human rights instruments such as the International Covenant on Civil and Political Rights obligate States to "ensure" the rights they protect and to provide an “effective remedy” to persons whose rights and freedoms have been violated under the respective treaties. Moreover, most observers agree on the existence of a growing and shared belief by States, thus reflecting an opinio juris, that amnesties for war crimes, crimes against humanity and genocide as well as certain grave violations of human rights are impermissible under customary law. To be considered to meet the customary international law threshold, states must also significantly follow a practice. Although several States have adopted amnesty laws, which prevent the identification of a general and consistent practice by States, there is a gradual evolution in State's practice that reveals a customary prohibition of amnesty for core international crimes. An illustration of the practice is the development of international criminal law with the creation of the ICC and several international and hybrid courts to promote the fight against impunity. 6 OHCHR, Rule-of-Law Tools for Post-Conflict States, Amnesties, HR/PUB/09/1 (2009), p. 41. Sometimes, this obligation is framed as an alternative: to “extradite or prosecute” (autdedereautjudicare). The principle of autdedereautjudicareentails a duty for states to prosecute a person having committed a crime under international law, or to extradite that person for prosecution elsewhere. 8 According to its preamble: “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” 7 3