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

Authors: 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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Bradley, MM
Revisiting the scope of application of Additional Protocol II: Exploring the inherent minimum threshold requirements
African Yearbook on International Humanitarian Law, 2019, p. 81 – 122

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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Women Political Representation and Gender Quotas in Kenya: A Retrospective Look

by | Apr 27, 2021 | AJCL, AJCL 2019

Women Political Representation and Gender Quotas in Kenya: A Retrospective Look

Authors: Buluma Bwire, Migai Akech and Agnes Meroka-Mutua

ISSN: 2521-5434
Affiliations: PhD Candidate, University of Nairobi, School of Law; Associate Professor of Law, University of Nairobi; Senior Lecturer in Law at the University of Nairobi
Source: Africa Journal of Comparative Constitutional Law, 2019, p. 1 – 24

Abstract

The 2010 Constitution introduced mandatory gender quotas for elective public bodies in Kenya through the provisions of articles 27(8) and 81(b). However, there exist no constitutional mechanisms to ensure the effective implementation of these quotas and this lacuna has contributed to an on-going constitutional impasse since 2013 when the First Parliament under this Constitution was elected into office. This article undertakes a retrospective interrogation of the state of women’s political representation in Kenyan politics leading up to the introduction of constitutional gender quotas with the promulgation of the 2010 Constitution. It further analyses the influence of electoral systems on women’s representation in Parliament vis-à-vis the implementation of gender quotas to increase their participation and representation in politics. It argues for changes in the Kenyan electoral system to facilitate the successful implementation of the constitutional gender quotas provided for under articles 27(8) and 81(b) of the Constitution.

Midnight Actions During Presidential Transitions in Ghana: A Rising Tide

by | Apr 27, 2021 | AJCL, AJCL 2019

Midnight Actions During Presidential Transitions in Ghana: A Rising Tide

Author: Maame Efua Addadzi-Koom

ISSN: 2521-5434
Affiliations: Lecturer at the Faculty of Law, Kwame Nkrumah University of Science and Technology, Kumasi, Ghana, and PhD Candidate, University of Cape Town, South Africa. LLM (Fordham University), BL (Ghana), LLB (KNUST)
Source: Africa Journal of Comparative Constitutional Law, 2019, p. 25 – 54

Abstract

With just a day to the end of his tenure in 2009, President Kufuor approved the single spine salary scheme, which increased public and civil sector salaries. After the 2016 elections, the outgoing President Mahama embarked on a spree of midnight actions—increasing salaries of national service personnel, making multiple appointments and recruitments, cutting sods for projects and signing a number of contracts. The exponential rise in midnight actions in a space of two inter-party transitional periods is alarming and requires urgent legislative response. The Presidential (Transition) Act (PTA) of 2012, which was enacted to enhance smooth presidential transitions, did not anticipate the increasing midnight actions. Accordingly, this article recommends that the PTA should be amended to address midnight actions in Ghana. The article reviews the responses to midnight actions in the United States and Australia and makes recommendations for Ghana’s legislative response based on the findings made. The article also considers the nature, practice and regulation of pre-election midnight actions and its place within Ghana’s transition framework. The article recommends that the proposed amendments to the PTA should also cover pre-election midnight actions.

Presidential Petitions in Kenya: Have Decisions of the Supreme Court Met the Test of Constitutionalism?

by | Apr 27, 2021 | AJCL, AJCL 2019

Presidential Petitions in Kenya: Have Decisions of the Supreme Court Met the Test of Constitutionalism?

Author: Moni Wekesa

ISSN: 2521-5434
Affiliations: Professor and Dean, Daystar University School of Law, Kenya
Source: Africa Journal of Comparative Constitutional Law, 2019, p. 55 – 76

Abstract

The Constitution of Kenya, 2010, stipulates that sovereignty lies with the people. This sovereignty can be exercised directly by the people through voting at periodic elections and referenda and indirectly through elected representatives, among others. Presidential elections in Kenya— as elsewhere in Africa—are usually hotly contested. Irregularities and illegalities are bound to occur. The Constitution of Kenya 2010 codified some rights, including those of the voter and the manner of conducting elections. The adjudication of presidential petitions was vested in the Supreme Court. Relevant enabling legislation and regulations have also been formulated. The Supreme Court has applied both the quantitative and qualitative tests in determining election petitions at different times. In the Presidential Election Petition of 2013, some of the issues canvassed revolved around whether there was a valid voters’ register and whether there were irregularities and if the illegalities observed were of a high enough threshold to affect the integrity of the election. The Supreme Court, applying the quantitative test determined that the election results would stand. However, in the 2017 Presidential Election Petition, the court, applying the qualitative test, deviated from its 2013 decision and nullified that election. The question that this article interrogates is whether the Supreme Court acted with constitutional fidelity in both these decisions. This article analyses the jurisprudence from the 2013 and 2017 decisions of the Supreme Court.