Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes

by | Sep 14, 2021 | AYIH, AYIH 2020

Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes

Author: Mispa Roux

ISSN: 2521-2621
Affiliations: LLB LLM (International Law) LLD (International Law) (UJ); Senior Lecturer in the Department of Public Law, Faculty of Law, University of Johannesburg; Deputy Director of the South African Institute for Advanced Constitutional, Public, Human Rights, and International Law (SAIFAC), a Centre of the University of Johannesburg.
Source: African Yearbook on International Humanitarian Law, 2020, p. 44 – 77
https://doi.org/10.47348/AYIH/2020/a3

Abstract

One of the core characteristics of international crimes is that they are committed on a great scale; therefore, the sheer volume and complexity of evidence required to justify investigation and ultimately prosecution inevitably leads to several challenges. Since the first time that persons were held individually criminally responsible at an international level at Nuremberg and in the Far East, to the way in which the permanent International Criminal Court fulfils its mandate, investigating and prosecuting international crimes have involved manifold challenges. This article identifies three challenges faced by international criminal courts and tribunals in investigating and prosecuting international crimes. The first challenge is the investigation phase of international criminal proceedings, specifically the difficulty of selecting cases and identifying persons with the greatest responsibility for the crimes. The second challenge flows from the first, specifically in light of the magnitude of evidence indicating the required gravity to pursue further investigation and eventually prosecution. This raises the difficult question whether investigators, prosecutors, and judges are able to consistently comply with their duty to respect and protect the various fair trial rights to which suspected and accused persons are entitled. The third and final challenge that will be engaged with in this article relates to the formidable impact of international and political relations at all stages of investigation and prosecution of international crimes, which may ultimately thwart compliance with the obligation to prosecute international crimes.

Reflections on humanitarian law dimensions of the African Union Convention for the protection and assistance of internally displaced persons in Africa

by | Sep 14, 2021 | AYIH, AYIH 2020

Reflections on humanitarian law dimensions of the African Union Convention for the protection and assistance of internally displaced persons in Africa

Author: Steve Tiwa Fomekong

ISSN: 2521-2621
Affiliations: Postdoctoral research fellow at the Centre d’études et de recherches de l’Université de Montréal in Canada; PhD in Law from Université Laval
Source: African Yearbook on International Humanitarian Law, 2020, p. 78 – 120
https://doi.org/10.47348/AYIH/2020/a4

Abstract

While significant attention has thus far been paid to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), the rules of humanitarian law that it sets out have not yet been the subject of a specific in-depth analysis. This contribution aims to fill this gap in the literature. It specifically examines the humanitarian law rules contained in the Kampala Convention to determine their meaning and scope, as well as their contribution to strengthening international humanitarian law (IHL). It begins by analysing the articulation of these regional humanitarian rules with the universal rules of IHL that preceded them to determine whether there is any divergence between them. Next, the paper attempts to determine the extent to which the humanitarian law provisions of the Kampala Convention enrich the legal protections provided by IHL for the improvement of the plight of internally displaced persons from armed conflict. Finally, with an approach centred around making suggestions for law reform, the paper demonstrates why and how these rules should inspire the future development of conventional and customary norms that would assist with the challenges of conflict-induced displacement.

Customary international humanitarian law: An overview of Kenya’s state practice in the post-2010 Constitution era

by | Sep 14, 2021 | AYIH, AYIH 2020

Customary international humanitarian law: An overview of Kenya’s state practice in the post-2010 Constitution era

Author: Kenneth Wyne Mutuma

ISSN: 2521-2621
Affiliations: Senior Lecturer at the School of Law, University of Nairobi, and an IHL practitioner
Source: African Yearbook on International Humanitarian Law, 2020, p. 121 – 158
https://doi.org/10.47348/AYIH/2020/a5

Abstract

With the exception of the shifta wars in the northern part of the country, Kenya has, for the greater part of its post-colonial history, enjoyed relative conditions of peace. This, in turn, has affected the volume of and quality of knowledge on Kenya’s state practice on international humanitarian law (IHL). The Customary IHL study of the International Committee of the Red Cross (ICRC) in 2005 reviewed state practice in the country at the time, based on materials such as military manuals, national laws and case law. However, since 2005, two significant events have had a direct bearing on the country’s IHL state practice. The first is the ushering in of a new constitutional order through the Constitution of Kenya, 2010, and the second is the Kenyan military troops’ incursion into Somalia against the Somali terrorist group, Al-Shabaab. This paper looks at the significant ways in which these two events have led to key additions to Kenya’s state practice, under four main headings: military manuals, national laws, court cases and other sources.

External and internal common legal representation of victims at the International Criminal Court: Beyond the ‘Kenyan trial approach’

by | Sep 14, 2021 | AYIH, AYIH 2020

External and internal common legal representation of victims at the International Criminal Court: Beyond the ‘Kenyan trial approach’

Author: Charles A Khamala

ISSN: 2521-2621
Affiliations: Senior lecturer, Africa Nazarene University Law School and Academic Leader, Criminal Justice and Security Management Programme; PhD in Droit Privé (Sciences Criminelles) Université de Pau et des Pays de l’Adour (mention trés honourable); LLM (University of London); LLB (Hons) (University of Nairobi); PGDip (KSL); Member ADC-ICT, List of Counsel: ICC, IRMCT, AfCHPR, ECCC, ICJ(K), ILA, ANCL and WSV; advocate of the High Court of Kenya
Source: African Yearbook on International Humanitarian Law, 2020, p. 159 – 191
https://doi.org/10.47348/AYIH/2020/a6

Abstract

The International Criminal Court (ICC) is primarily mandated to punish persons bearing the greatest responsibility for the worst crimes known to mankind. Additionally, its victim reparations are contingent on conviction; because of this, the Rome Statute’s retributive goal is compounded with the inquisitorial function of seeking the truth by realising the victim’s entitlement to participate at appropriate stages throughout the proceedings. However, the suspect’s due process rights must remain protected. While the Court balances these procedural functions, victims’ representatives determine which victims are members of the appropriate constituency. This paper’s theoretical framework shows how victims are vulnerable to their representative’s claims. Therefore, the question arises as to whether external or internal legal representation will be more effective for victims. This determines how victims’ voices may best be elicited. Some victimologists contend that the exclusion of an external Common Legal Representative (CLR) in the search of mass atrocity solutions promotes merely symbolic, rather than meaningful, victim participation in ICC proceedings. The Court insists on external CLRs because of their local knowledge. Others emphasise the proximity of the Office of the Public Counsel for Victims (OPCV) to judges as providing access to justice at The Hague. Crucially, by requiring the OPCV to interface between the external CLR and the Chamber in day-to-day proceedings, the ‘Kenyan trial approach’ has made victims’ participation more meaningful. Yet, following the Ruto and Sang case, the ICC faces challenges when confronted with diverse modalities of implementing reparations for multiple victims. In the Palestine situation, claims seeking to promote victims’ interests required victim empowerment, including strengthening appropriate victim constituencies through outreach to enable them to articulate disagreements with their representatives. In the Ongwen case, a broad interpretation gave victims’ voices enhanced agency over the defence. Recently, in Ntaganda’s case, the Court directed the Registry to liaise not only with the CLRs but also with the Trust Fund for Victims for appropriate outreach and communication with victims.

How effective have African truth commissions been?

by | Sep 13, 2021 | AYIH, AYIH 2020

How effective have African truth commissions been?

Author: William Gumede

ISSN: 2521-2621
Affiliations: Associate Professor, School of Governance, University of the Witwatersrand, Johannesburg
Source: African Yearbook on International Humanitarian Law, 2020, p. 192 – 208
https://doi.org/10.47348/AYIH/2020/a7

Abstract

The study is a critical review of several African countries’ attempts to seek justice, truth and lasting peace after deadly conflict through the mechanisms of transitional justice, specifically through the establishment of truth and reconciliation commissions or equivalent structures. Outcomes for African commissions have been mixed. Some met with genuine success. Some were obviously ineffective, neither uncovering the truth, nor bringing justice to the victims or holding perpetrators accountable. The review will analyse why some African truth commissions have performed better, while others have been widely condemned as failures and missed opportunities. It will outline lessons for other African countries considering setting up truth commissions or related transitional justice mechanisms to tackle the legacies of a violent past, to bring justice, and to forge reconciliation and lasting peace.

Book Review: Marketing Global Justice – The Political Economy of International Criminal Law, by Christine Schwöbel-Patel (2021)

Book Review: Marketing Global Justice – The Political Economy of International Criminal Law, by Christine Schwöbel-Patel (2021)

by | Sep 13, 2021 | AYIH, AYIH 2020

Book Review: Marketing Global Justice – The Political Economy of International Criminal Law, by Christine Schwöbel-Patel (2021)

Author: Mia Swart

ISSN: 2521-2621
Affiliations: N/A
Source: African Yearbook on International Humanitarian Law, 2020, p. 209 – 213
https://doi.org/10.47348/AYIH/2020/a8

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Swart, M
Book Review: Marketing Global Justice – The Political Economy of International Criminal Law, by Christine Schwöbel-Patel (2021)
African Yearbook on International Humanitarian Law, 2020, p. 209 – 213
https://doi.org/10.47348/AYIH/2020/a8

Abstract

None

Book Review: Soviet Judgment at Nuremberg – A New History of the International Military Tribunal after World War II, by Francine Hirsch (2020)

by | Sep 13, 2021 | AYIH, AYIH 2020

Book Review: Soviet Judgment at Nuremberg – A New History of the International Military Tribunal after World War II, by Francine Hirsch (2020)

Author: Gerhard Kemp

ISSN: 2521-2621
Affiliations: University of Derby, United Kingdom
Source: African Yearbook on International Humanitarian Law, 2020, p. 214 – 216
https://doi.org/10.47348/AYIH/2020/a9

Abstract

None

Notes: ‘Observations’ on the State Capture judgment

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: ‘Observations’ on the State Capture judgment

Author: Michael Tsele

ISSN: 1996-2177
Affiliations: Member of the Cape and Johannesburg Bars
Source: South African Law Journal, Volume 138 Issue 3, p. 477-500
https://doi.org/10.47348/SALJ/v138/i3a1

Abstract

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

Notes: Children, autonomy and statements: The need for a bright-line rule

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: Children, autonomy and statements: The need for a bright-line rule

Author: Salona Lutchman

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 3, p. 500-508
https://doi.org/10.47348/SALJ/v138/i3a2

Abstract

Currently, a child cannot provide a statement without parental or guardian consent. This limits the child’s right to participate fully in matters which affect the child. Indeed, it also impacts the fact-finding process of an investigation. In terms of international conventions and the Children’s Act 38 of 2005, child participation is a cornerstone of children’s rights. This note proposes that South African law recognise adolescent autonomy — specifically, an adolescent’s competence to provide a statement in matters affecting the child. An adolescent’s stage of growth (physical and mental) makes the child capable of understanding the consequences of such conduct, and the child’s developing agency and cognitive abilities mean that the child may wish to do so. The note proposes that the law recognise the autonomy of a child who is twelve years or older to provide an unassisted statement in legal fora.

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

Author: Tshepo H Mongalo

ISSN: 1996-2177
Affiliations: Associate Professor, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 138 Issue 3, p. 508-521
https://doi.org/10.47348/SALJ/v138/i3a3

Abstract

This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.