The use of universal jurisdiction to ensure accountability for international crimes committed in Liberia in the periods 1989 to 1997 and 1999 to 2003

by | Nov 19, 2022 | AYIH, AYIH 2021

The use of universal jurisdiction to ensure accountability for international crimes committed in Liberia in the periods 1989 to 1997 and 1999 to 2003

Author: Shannon Bosch

ISSN: 2521-2621
Affiliations: BA (Hons) LLB LLM PhD, Attorney of the High Court of South Africa, Associate Professor of Law at University of Kwa-Zulu Natal
Source: African Yearbook on International Humanitarian Law, 2021, p. 67 – 92
https://doi.org/10.47348/AYIH/2021/a3

Abstract

This article investigates the potential for using the principle of universal jurisdiction to prescribe and then prosecute international crimes committed in Liberia during the two civil conflict periods: 1989 to 1997 and 1999 to 2003. More particularly, the article unpacks the concept of universal jurisdiction and explores the benefits that it offers in ending impunity for heinous international crimes. The article explores some of the controversies that have prevented the effective use of the principle of universal jurisdiction and highlights why it remains relevant, given the current response by the African Union to international prosecutions. The article highlights the reason why cases such as Kosiah and Massaquoi are especially significant in ending impunity in the case of Liberia, and how the success or failure of such cases can have a ripple effect, creating the necessary pressure for the establishment of an Extraordinary Criminal Court for Liberia on Liberian soil.

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

Author: Elisa Rinaldi

ISSN: 1996-2185
Affiliations: Assistant Lecturer, Faculty of Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 181 – 211
https://doi.org/10.47348/SAMLJ/v34/i2a2

Abstract

With a growth in cross-border employment, the territorial limitations  placed on the adjudication of cross-border employment disputes is  incongruent to the development of employment and the subsequent  employment relationship. The question of adjudication in the Labour  Court rests predominantly on the territorial scope of South Africa’s  employment statutes. Accordingly, this article exposes the uncertainty  employees, who work outside their countries of residence, face when  trying to utilise the Labour Court as a channel of legal relief. Reasons  for this inconsistency lies in the approach the Labour Court has taken  in determining the territorial reach of South Africa’s employment  statutes. Where the Labour Court has utilised methods of statutory  interpretation and strictly imposed the presumption against extraterritoriality,  the court has established a practice that, in light of the  growing global nature of employment, deviates from the realities of the  de-territorialised flow of labour. Important in this article is thus the  endorsement of private international law principles and methods in  establishing jurisdiction and choice of law in the adjudication of a  cross-border employment dispute. 

International humanitarian law in the African Commission’s General Comment No 3 on the Right to Life: A critical and comparative analysis

by | Nov 19, 2022 | AYIH, AYIH 2021

International humanitarian law in the African Commission’s General Comment No 3 on the Right to Life: A critical and comparative analysis

Author: Brian Sang YK

ISSN: 2521-2621
Affiliations: LLB LLM PhD MCIArb, Lecturer, Faculty of Law, Egerton University
Source: African Yearbook on International Humanitarian Law, 2021, p. 93 – 133
https://doi.org/10.47348/AYIH/2021/a4

Abstract

The African Commission on Human and Peoples’ Rights, which is the treaty body established to monitor the States Parties’ compliance with the African Charter on Human and Peoples’ Rights, adopted General Comment No 3 on the Right to Life in 2015. The African Commission’s General Comment No 3 provides authoritative normative guidance for interpreting and implementing the right to life under Article 4 of the African Charter in armed conflict situations. Specifically, it outlines the African Commission’s perspective on the right to life by elaborating on its scope and content, and also by clarifying the protections for individuals and the concomitant obligations of states. This article systematically discusses how and to what extent international humanitarian law (IHL) norms are integrated into the African Commission’s General Comment No 3, and what the likely effects of such integration are. Using a critical and comparative approach, this article analyses General Comment No 3’s interpretive approach to arbitrary deprivation of life in armed conflict; the constraints on lethal force during the conduct of hostilities; and states’ extraterritorial legal obligations. The article demonstrates that, although it is a creditable advance in elaborating the right to life during armed conflict and other situations of violence, General Comment No 3 leaves key aspects of the IHL–human rights law interface either laconically addressed or ineffectually articulated. Those aspects will have to be clarified in the African Commission’s future jurisprudence.

The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration

Author: Moseki Maleka

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 212 – 228
https://doi.org/10.47348/SAMLJ/v34/i2a3

Abstract

Before the commencement of the constitutional state era (due to the  promulgation of the Constitution of the Republic South Africa, 1996  (‘the Constitution’)) in South Africa, taxpayers’ rights were not protected  when taxpayers engaged with the revenue office, now known as  the South African Revenue Service (SARS). Taxpayers had no right to  just administrative action and could not challenge the exercise of SARS’  powers on administrative grounds.  Croome and Olivier argue correctly that during the pre-constitutional  era, taxpayers were entitled to expect that SARS would comply  with the general principles of administrative law, comprising the  principles of audi alteram partem (‘hear the other side’), nemo iudex in  sua propria (‘no one may be a judge in his own cause’) and the commonlaw  principles of judicial review of administrative acts (see Croome &  Olivier, Tax Administration (Juta 2010) 21).  Further, SARS was not obliged to provide reasons to taxpayers for  decisions taken by them as long as the decisions were reached in  accordance with its wide legislative powers (see Croome & Olivier, (Juta  2010) 21). This means that taxpayers did not have any ammunition to  challenge the exercise of SARS’ powers on administrative grounds prior  to the commencement of the constitutional era, where no reasons were  provided.  The position mentioned above has changed and SARS’ actions can  now be measured against the fundamental rights entrenched in Chapter  2 of the Constitution and the administrative principles laid down in the case of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and  Tourism and Others 2004 (4) SA 490 (CC) (‘Bato Star Fishing’). 

Assessing the Legal and Regulatory Framework for Special Economic Zones in South Africa

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

Assessing the Legal and Regulatory Framework for Special Economic Zones in South Africa

Author: Mmiselo Freedom Qumba

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, University of the Free State
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 229 – 267
https://doi.org/10.47348/SAMLJ/v34/i2a4

Abstract

The previous industrial development zones (IDZs) programme did not generate the anticipated economic growth in South Africa. Thus, the recent special economic zones (SEZs) programme is aimed at addressing the deficiencies in the disappointing record of the IDZs. So, would the new SEZ programme succeed if the IDZs failed? Since the IDZ is considered to have failed to generate the expected levels of economic growth, it is important assess whether the new SEZ programme will be able to fulfil its intended objectives. Therefore, the purpose of this article is to provide an insightful analysis of the South African SEZ programme from a legal and policy perspective and to proffer some reforms in areas that may be pertinent for the success of the SEZ programme. It traces South Africa’s experience with the IDZs and related industrial policies by assessing how the country has fared so far, looking at its transition from the IDZs to the SEZs and analyses the potential challenges it is likely to face in the future. It adopts a comparative method of analysis by examining key issues confronting SEZs in South Africa, India, and China. In particular, the article compares only the key aspects in the regulatory design of the SEZ as found in the SEZ Act. These aspects include: the governance and ownership structure of the SEZs; the incentives offered to investors; the establishment of one-stop shops and issues of infrastructure development.

The silence of Africa in the international humanitarian law debate

by | Nov 19, 2022 | AYIH, AYIH 2021, Uncategorized

The silence of Africa in the international humanitarian law debate

Author: Kenneth Wyne Mutuma

ISSN: 2521-2621
Affiliations: BA Law LLM PhD, Senior Lecturer at the University of Nairobi
Source: African Yearbook on International Humanitarian Law, 2021, p. 134 – 149
https://doi.org/10.47348/AYIH/2021/a5

Abstract

International humanitarian law (IHL), as a component of international law, specifically seeks to limit the effects of warfare. The law of wars aims to limit suffering by regulating how war is fought. Despite the universal nature of most rules of IHL, Africa has been largely left behind, especially in the development of these laws and also in understanding and applying such laws on the continent. Notably, Africa has had its fair share of armed conflicts over the years, the effects of which have been devastating. However, there has been a disconnect between the development and the application of the rules of IHL in Africa. The history of Africa has led to the continent being disconnected from the development of IHL over the years. This article, therefore, aims to illustrate the gaps that exist in regard to Africa in the development of IHL as well as the exclusion of Africa’s concerns from the global IHL debate. The article considers why there is regional disengagement when it comes to IHL debates on the continent. This is done by first examining the reality of wars in Africa, which are similar to those that have occurred in other parts of the world. The article then considers the development of IHL as a body of international law that regulates armed conflicts and the gaps that exist in its application to and development in Africa. Finally, this article reflects on some of the ways of ensuring that Africa does not remain passive when engaging in the global IHL debate.

Uganda’s decision ‘In the Matter of an Arrest Warrant and the Surrender to the International Criminal Court (ICC) of Omar Hassan Ahmed al-Bashir’: Explanation, issues and consequences

by | Nov 19, 2022 | AYIH, AYIH 2021

Uganda’s decision ‘In the Matter of an Arrest Warrant and the Surrender to the International Criminal Court (ICC) of Omar Hassan Ahmed al-Bashir’: Explanation, issues and consequences

Author: Kasaija Phillip Apuuli

ISSN: 2521-2621
Affiliations: LLM, DPhil (University of Sussex); Associate Professor, Department of Political Science and Public Administration, Makerere University, Kampala, Uganda
Source: African Yearbook on International Humanitarian Law, 2021, p. 150 – 173
https://doi.org/10.47348/AYIH/2021/a6

Abstract

On 19 December 2019, High Court Justice Peter Adonyo issued a warrant of arrest for former Sudan President Omar al-Bashir should he ever set foot in Uganda or in a territory controlled by Uganda. He also held that by failing to arrest and surrender al-Bashir on two occasions in 2016 and 2017, in fulfilment of the warrants of arrest issued by the International Criminal Court (ICC) in 2009 and 2010, Uganda had breached its own International Criminal Court Act (2010), the Rome Statute (1998) and United Nations Security Council Resolution 1593 (2005). This contribution discusses the judgment by considering the context of Uganda’s failure to meet its legal obligations with regard to the ICC’s arrest warrants against al-Bashir. It then discusses the future of Uganda’s arrest warrant against al-Bashir, and the court’s clarification of the superiority of United Nations (UN) decisions over those of the African Union (AU).

South African Governance Legal Framework for Corporate disclosures and reporting: Part 1 – Voluntary sustainability reporting

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

South African Governance Legal Framework for Corporate disclosures and reporting: Part 1 – Voluntary sustainability reporting

Author: Werner Schoeman

ISSN: 1996-2185
Affiliations: Lecturer: Mercantile and Labour Law Department, School of Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 268 – 292
https://doi.org/10.47348/SAMLJ/v34/i2a5

Abstract

The general dissatisfaction of shareholders and other users of financial statements with both voluntary sustainability and mandatory financial disclosure and reporting, prompt an appeal for increased government-commanded reporting requirements. State-based standardsetting and voluntary sustainability reporting within the corporate jurisprudence must therefore evolve, which includes, among others, the variety of legal and regulatory standards, their dynamism, and the manner in which standards can be imposed. Directors and auditors must act ethically to observe their various functions as regulated by the Companies Act 71 of 2008 and the Auditing Profession Act 26 of 2005. National and international companies persistently undermine good governance. Directors’ and auditors’ failure to comply with ethics can certainly not continue with impunity. The global trend in the use of voluntary sustainability reporting highlights the prominence that auditors play in good corporate governance, although compliance with voluntary sustainability reporting does not warrant good corporate governance. Independence of auditors remains contentious in the light of the funding model of the regulator, working of audit committees, the connection between directors and companies, and the corporate governance expectation gap.

Case Notes: The income tax position of a creditor on the insolvency and/or business rescue of a debtor

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

Case Notes: The income tax position of a creditor on the insolvency and/or business rescue of a debtor

Authors: Thabo Legwaila & Carika Fritz

ISSN: 1996-2185
Affiliations: Professor of Law, University of Johannesburg; Associate Professor of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 293 – 303
https://doi.org/10.47348/SAMLJ/v34/i2a6

Abstract

None

Counting apples as oranges: Problems under international humanitarian law with designating the Allied Democratic Forces and Ansar al-Sunna foreign terrorist organisations

by | Nov 19, 2022 | AYIH, AYIH 2021

Counting apples as oranges: Problems under international humanitarian law with designating the Allied Democratic Forces and Ansar al-Sunna foreign terrorist organisations

Author: Rebecca Rattner

ISSN: 2521-2621
Affiliations: BA (Brown) MSc (LSE) JD (Harvard); Research Associate at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a Centre of the University of Johannesburg
Source: African Yearbook on International Humanitarian Law, 2021, p. 174 – 190
https://doi.org/10.47348/AYIH/2021/a7

Abstract

Under President Biden, the US has shifted its approach to ISIS to address fears about the group’s expansion globally. The spread of ISIS in Africa has become an area of notable concern as an increasing number of armed groups across the continent have announced affiliations with ISIS. In response to this perceived threat, the Biden Administration announced the designation of two armed groups with ties to ISIS operating in the Democratic Republic of Congo (DRC) and Mozambique as foreign terrorist organisations (FTOs) in March 2021. There are, however, reasons to question the applicability of the designations in these two cases and consider the broader context and consequences. This article argues that the designations have been inappropriately assigned to these two groups in the DRC and Mozambique based on inaccurate factual assessments and explores the implications of this problematic approach under international humanitarian law.