Peacekeepers and sexual violence: The disjuncture between domestication and implementation

by | Apr 27, 2021 | AYIH, AYIH 2019

Peacekeepers and sexual violence: The disjuncture between domestication and implementation

Authors: Ntemesha Maseka and David Abrahams

ISSN: 2521-2621
Affiliations: LLB LLM (cum laude). LLD Candidate, Nelson Mandela University; BJuris LLB LLM (UPE) LLM (UNIGE, Switzerland) 
Source: African Yearbook on International Humanitarian Law, 2019, p. 1 – 24

Abstract

Sexual exploitation and abuse by United Nations peacekeepers are prevalent in contemporary armed conflicts. Peacekeepers who commit these crimes against the local population do so with impunity. This article grapples with whether a lacuna in the existing law causes the impunity and thus lack of accountability of peacekeepers who commit such acts. International humanitarian law absolutely prohibits sexual violence at all times and against anyone. Moreover, sexual violence as a violation of international humanitarian law constitutes a war crime. There is a complex relationship between international and national law applicable to peacekeepers when they commit a crime, however, the law, at least in the South African case, is not deficient.

By all means necessary: A look at the reliance on United Nations Security Council resolutions as a basis for internment in non-international armed conflicts

by | Apr 27, 2021 | AYIH, AYIH 2019

By all means necessary: A look at the reliance on United Nations Security Council resolutions as a basis for internment in non-international armed conflicts

Author: Hillary Muchiri Kiboro

ISSN: 2521-2621
Affiliations: LLM in Public International Law (University of Nairobi), LLB (University of Nairobi) Postgraduate Diploma (Kenya School of Law)
Source: African Yearbook on International Humanitarian Law, 2019, p. 25 – 48

Abstract

This article analyses the practice of using United Nations Security Council (UNSC) resolutions as the legal basis of internment in noninternational armed conflicts (NIACs). The article commences with a brief definition of NIACs juxtaposed with international armed conflicts (IACs) and demonstrates the better-developed internment regime in IACs. In particular, the analysis proceeds on the basis of some fundamental legal questions appertaining to the deprivation of liberty such as who can be deprived of liberty; when and for how long; under what conditions; and pursuant to what process. The article notes that treaty international humanitarian law (IHL) applicable to IACs answers these questions well; however, this is not the case concerning treaty IHL applicable to NIACs. The article further explores another critical question, namely whether customary IHL provides the requisite legal basis for interning individuals in connection with NIACs. It should, however, be noted that international consensus on this issue is lacking. The latter relates not to the right to intern as such, but rather to the scope of this right and the conditions of its exercise. Consequently, practice to find a legal basis for internment in other legal regimes such as domestic law and UNSC resolutions emerged. This practice has found judicial affirmation in a number of decisions from domestic courts and regional human rights courts. For instance, in the case of Abd Ali Hameed Al-Waheed v Ministry of Defence, the Supreme Court of the United Kingdom was convinced that UNSC resolutions provided sufficient authority for the military forces to intern persons when it was necessary for the accomplishment of the forces’ mission. Here, the two relevant UNSC resolutions granted the power to multinational forces in Iraq to use ‘all necessary measures’ to accomplish their mission. UNSC Resolution 1546 on Iraq had an annexed a letter by the United States Secretary of State, authorising internment.

Les accords spéciaux dans les conflits armés en République Démocratique du Congo: Contribution à l’amélioration du droit international humanitaire?

by | Apr 27, 2021 | AYIH, AYIH 2019

Les accords spéciaux dans les conflits armés en République Démocratique du Congo: Contribution à l’amélioration du droit international humanitaire?

Authors: Par Junior Mumbala Abelungu

ISSN: 2521-2621
Affiliations: Docteur en droit (PhD) de l’Université de Gand (Belgique), Master de spécialisation en droit international de l’Université Libre de Bruxelles (Belgique)
Source: African Yearbook on International Humanitarian Law, 2019, p. 49 – 80

Abstract

Special Agreements in Armed Conflicts of the Democratic Republic of the Congo: A contribution to the Enhancement of International Humanitarian Law? The Democratic Republic of the Congo (DRC) has been facing an interlocking and almost permanent armed conflict for more than two decades. Under the auspices of the international community, several special agreements have been signed between the parties — state and nonstate — involved in the conflicts. It is worth considering the relevance of those agreements as a means to enhance compliance with international humanitarian law (IHL). Indeed, it appears that these special agreements are mostly preoccupied with eminently political issues, including the peaceful settlement of disputes and security and institutional reforms. Few special agreements concluded in this framework are specifically concerned with IHL, particularly in terms of managing hostilities. They concern, rather, putting an end to hostilities while resolving the fate of civilians and combatants. Thus, they often imprecisely reaffirm respect for IHL. Even then, there is no real evidence that the parties to armed conflicts in the DRC are committed to ensuring compliance with IHL through these agreements. Their systematic violations confirm this point of view. Also, the pressure exerted by the international community pushes sometimes conflicting parties to sign these agreements without conviction. The advantage of these agreements, however, is that they allow armed groups, in particular, to expressly and unambiguously reiterate their commitment to the rules of IHL. This reinforces, at the same time, IHL instruments in sub-regional or national frameworks.

Revisiting the scope of application of Additional Protocol II: Exploring the inherent minimum threshold requirements

Revisiting the scope of application of Additional Protocol II: Exploring the inherent minimum threshold requirements

by | Apr 27, 2021 | AYIH, AYIH 2019

Revisiting the scope of application of Additional Protocol II: Exploring the inherent minimum threshold requirements

Author: Martha M Bradley

ISSN: 2521-2621
Affiliations: LLB LLM LLD (University of Pretoria) LLM (University of Cape Town)
Source: African Yearbook on International Humanitarian Law, 2019, p. 81 – 122

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Abstract

Currently, the landscape of armed conflict reflects a complex reality: Multiple non-international, as well as international armed conflicts, often co-exist in the same territory during the same time frame. Consequently, not all these conflicts are regulated under the same rules of international humanitarian law. In the period leading up to mid-2019, multiple armed conflicts of a mixed nature prevailed. On the African continent the conflicts in the Central African Republic, Mali, South Sudan and the Democratic Republic of the Congo are examples of such complexity which presents a challenge in conflict classification. In each of these conflicts, some of the armed groups display a degree of territorial control, with the result that these conflicts may trigger the application of Additional Protocol II. Additional Protocol II is the only treaty dedicated to the regulation of non-international armed conflict. It supplements and elaborates on the basic guarantees of humane treatment codified in Common Article 3, thus offering better protection to those involved in an Additional Protocol II-type non-international armed conflict. Article 1(1) of Additional Protocol II necessitates a high degree of organisation to be in place for an armed group to qualify as an organised armed group within the scope of application of this treaty. Not every ‘band’ acting under a ‘leader’ qualifies as an organised armed group under Additional Protocol II as only those armed groups that satisfy certain criteria are considered to be an armed group for the purposes of Additional Protocol II. Even though this instrument has celebrated 40 years of survival since its activation in 1978, its scope of application has received scant attention in scholarly work. This contribution sets out to clarify the minimum threshold requirements inherent in the organisational criteria that non-state fighting units have to meet under Article 1(1) of Additional Protocol II. It will achieve its aim by employing the rules of treaty interpretation as codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

Transparent, structured, and qualified: Why process matters for electing the next ICC Prosecutor

by | Apr 27, 2021 | AYIH, AYIH 2019

Transparent, structured, and qualified: Why process matters for electing the next ICC Prosecutor

Authors: Evelyn A Ankumah and James Goldston

ISSN: 2521-2621
Affiliations: Executive director of Africa Legal Aid (AFLA); Executive director of the Open Society Justice Initiative
Source: African Yearbook on International Humanitarian Law, 2019, p. 129 – 134

Abstract

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