The Historical Application of Command Responsibility as Basis for Prosecuting Sexual Violence Crimes Under International Criminal Law: The Post-World War II Criminal Tribunals to Rome

by | Mar 4, 2024 | FUND, FUND V29I2

The Historical Application of Command Responsibility as Basis for Prosecuting Sexual Violence Crimes Under International Criminal Law: The Post-World War II Criminal Tribunals to Rome

Author Brenda Akia

ISSN: 2411-7870
Affiliations: LLB (Makere) LLM (Humboldt/UWC) LLD (Pret). Member of the UN CEDAW Committee
Source: Fundamina, Volume 29 Issue 2, p. 1-32
https://doi.org/10.47348/FUND/v29/i2a1

Abstract

The principle of command responsibility places a legal obligation on military commanders or civilian superiors to take reasonable and necessary steps to prevent and suppress commission of crimes, including sexual violence crimes by persons under their command, or to report to competent authorities if the crimes are committed. This contribution provides a historical analysis of the evolution of the codification and adjudication of command responsibility and its application to prosecute sexual violence crimes under international criminal law. Examining this historical evolution aims to provide legal practitioners with a clear understanding of how the doctrine of command responsibility found its way into contemporary international criminal law treaties, such as the Rome Statute of the International Criminal Court. This will assist legal practitioners to successfully apply command responsibility to prosecute sexual violence crimes and to better understand the interplay between international criminal law and international humanitarian law.

“Under the Whip” or Marital Violence, Cruelty and Drunkenness: Defining the Boundaries of Judicially Intolerable Marital Behaviour in the Cape Supreme Court, 1890–1900

by | Mar 4, 2024 | FUND, FUND V29I2

“Under the Whip” or Marital Violence, Cruelty and Drunkenness: Defining the Boundaries of Judicially Intolerable Marital Behaviour in the Cape Supreme Court, 1890–1900

Author Amanda Barratt

ISSN: 2411-7870
Affiliations: BA(Hons) (UCT) LLB LLM (Unisa) PhD (UCT). Associate Professor, Private Law, University of Cape Town
Source: Fundamina, Volume 29 Issue 2, p. 33-84
https://doi.org/10.47348/FUND/v29/i2a2

Abstract

This contribution explores marital violence in the Cape during the last decade of the nineteenth century. It is based on a comprehensive review of 587 matrimonial cases heard in the Cape Supreme Court over a ten-year period from January 1891 to December 1900. The study shows that marital violence had occurred in almost one quarter of the matrimonial suits finalised during that decade. The contribution explores the judicial response to violence within marriage. The optimal protection available to an abused wife was a judicial separation order. Such an order was available where continued cohabitation had become dangerous or “intolerable”. The research explores the kinds of marital behaviour deemed to be sufficiently intolerable to justify a separation order. While the Cape Supreme Court did not always provide abused wives with the protection of a separation order, the court nevertheless expressed firm disapproval of physical abuse. It viewed continual drunkenness as intolerable behaviour, and also regarded both emotional and economic abuse as reprehensible. The contribution also takes a look at the community’s response to interspousal violence and at the prevailing societal views of appropriate behaviour for husbands and wives. The study further investigates the development of the companionate marriage as a partnership of equals. It shows that, by the late nineteenth century, wives were demanding more control within the marital consortium and further that contemporary societal expectations determined that marriages should be romantic relationships based on mutual affection. Law plays an important part in both reflecting and shaping social attitudes. The court rulings helped to shape the law by establishing the legal boundaries of so-called acceptable marital behaviour. These cases reveal the law’s role in shaping acceptable behaviour for husbands and wives respectively, reflecting and reinforcing gendered marital roles.

People for Sale: Tracing the Historical Roots of Slavery and Human Trafficking in Early Colonial South Africa

by | Mar 4, 2024 | FUND, FUND V29I2

People for Sale: Tracing the Historical Roots of Slavery and Human Trafficking in Early Colonial South Africa

Author Nina Mollema

ISSN: 2411-7870
Affiliations: D Litt et Phil LLB LLM LLD (Unisa). Associate Professor, Department of Criminal and Procedural Law, University of South Africa
Source: Fundamina, Volume 29 Issue 2, p. 85-111
https://doi.org/10.47348/FUND/v29/i2a3

Abstract

Some researchers assert that trafficking in persons is a contemporary form of slavery that has existed for at least a century between Africa and Europe in the form of the trans-Atlantic slave trade. Other scholars, who only regard human trafficking as trafficking done for the purpose of sexual exploitation, maintain that the origins of modern trafficking dates to the end of the nineteenth century. However, the history of trafficking in South Africa goes back even further. This contribution outlines the history of human enslavement in South Africa from its conceptualisation as slavery through to its evolution as human trafficking. In this investigation, the similarities and differences between slavery and human trafficking are highlighted. By analysing the annals of human trafficking, it is shown that the original form of human exploitation – slavery – has a long-standing tradition in South Africa. It is contended that learning from past human-bondage injustices may contribute positively to a more comprehensive understanding not only of contemporary slavery, but also of the challenges affecting the present success of anti-trafficking efforts.

Book Review: Tulrike Babusiaux, Christian Baldus, Wolfgang Ernst, Franz-Stefan Meissel, Johannes Platschek & Thomas Rüfner (Eds) Handbuch Des Römischen Privatrechts

by | Mar 4, 2024 | FUND, FUND V29I2

Book Review: Tulrike Babusiaux, Christian Baldus, Wolfgang Ernst, Franz-Stefan Meissel, Johannes Platschek & Thomas Rüfner (Eds) Handbuch Des Römischen Privatrechts

Author Philip Thomas

ISSN: 2411-7870
Affiliations: Emeritus Professor, University of Pretoria
Source: Fundamina, Volume 29 Issue 2, p. 112-121
https://doi.org/10.47348/FUND/v29/i2a4

Abstract

None

The Right Against Double Jeopardy (Non Bis in Idem) and the Drafting History of Article 14(7) of the International Covenant on Civil and Political Rights, 1966

by | Aug 20, 2023 | FUND, FUND V29I1

The Right Against Double Jeopardy (Non Bis in Idem) and the Drafting History of Article 14(7) of the International Covenant on Civil and Political Rights, 1966

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 29 Issue 1, p. 1-28
https://doi.org/10.47348/FUND/v29/i1a1

Abstract

Article 14(7) of the International Covenant on Civil and Political Rights, 1966 provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. The drafters of that provision agreed that once a person had finally been convicted or acquitted of an offence, they should not be tried or punished for the same offence based on the same facts or evidence. The ICCPR does not define what a “final” judgment amounts to for the purposes of article 14(7). This is so because, after several days of deliberation, the drafters of the ICCPR failed to agree on the definition of that term. Despite some states proposing such a definition, the drafters instead agreed to omit it completely, with the understanding that each state will determine the meaning of a “final judgment” within their own context. This contribution illustrates the drafting history of article 14(7), which shows that the drafters agreed on the definition of the word “finally” in the provision, but that they decided against including the definition in the provision. This means that states are required to follow that definition when interpreting article 14(7). Furthermore, this study also shows the impact of this drafting history on the reservations made by various states. It is argued that certain of these reservations to article 14(7) are incompatible with the drafting history of the provision.

A Courtroom Misdiagnosis: A Historical Overview of the South African Approach to Evidence of Persons with Communication Disabilities Before 1996

by | Aug 20, 2023 | FUND, FUND V29I1

A Courtroom Misdiagnosis: A Historical Overview of the South African Approach to Evidence of Persons with Communication Disabilities Before 1996

Author Mahlubandile Ntontela

ISSN: 2411-7870
Affiliations: LLB LLM PGDip in Labour Law Practice PGDip in Drafting and Interpretation of Contracts. Lecturer, Department of Criminal Law and Procedure, Nelson Mandela University
Source: Fundamina, Volume 29 Issue 1, p. 29-52
https://doi.org/10.47348/FUND/v29/i1a2

Abstract

Over the past centuries, the English and South African jurisdictions have struggled with the best approach to hearing evidence of persons with impaired speech. The English courts’ challenges in hearing such evidence have led to the courts there developing legal principles for receiving evidence of witnesses with communication disabilities. Unfortunately, these principles have led to courts misdiagnosing witnesses with communication disabilities. Consequently, the courts treated witnesses with communication disabilities similarly to witnesses with mental illness. Accordingly, under English law and later also under South African law, for some time, people with communication disabilities were detained indefinitely without trial. Such detention was subject to pardon by a designated government official. This contribution examines how the courts have ill-treated persons with communication disabilities in England and South Africa during the nineteenth and twentieth centuries. The study uses a periodisation theory to critically argue how witnesses with speech impairment were unfairly treated in both jurisdictions during this period before the promulgation of the Constitution of the Republic of South Africa, 1996.