A New Era for International Criminal Law: Rethinking the Definitions of Crimes against Humanity and Genocide through the Scope of its Evolution as an Outgrowth of War Crimes

by | Oct 25, 2019 | SAYIL, SAYIL 2017

A New Era for International Criminal Law: Rethinking the Definitions of Crimes against Humanity and Genocide through the Scope of its Evolution as an Outgrowth of War Crimes

Authors Mispa Roux

ISSN: 2521-2583
Affiliations: Senior Lecturer, Faculty of Law, University of Johannesburg. Deputy Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law.
Source: South African Yearbook of International Law, 2017, p. 80 – 118

Abstract

Genocide and crimes against humanity were at first considered an outgrowth of war crimes, the latter being the only category of crime accepted as having an international character before the twentieth century. The international community has for centuries been concerned with the outlawing of certain acts during armed conflict, and exhibited the intention to hold the perpetrators of these acts accountable. The establishment of genocide and crimes against humanity as independent international crimes was a gradual process that spread over several centuries, and history shows that war crimes formed the basis for both these crimes. All three international crimes overlap in many ways: certain acts that amount to crimes against humanity constitute war crimes, and certain war crimes are also crimes against humanity. By the same token, genocide can amount to a war crime, and certain war crimes may constitute genocide. Genocide was initially conceptualised as a crime against humanity, and persecution as a crime against humanity specifically belongs to the same genus as genocide. All three crimes therefore inform the others, with war crimes being pivotal to the gradual process during which genocide and crimes against humanity became autonomous international crimes. The following article will firstly furnish an historical background to the development of international criminal law in order to illustrate the fundamental role played by war crimes in the development of the international crimes of genocide and crimes against humanity. Secondly, the article will identify certain overlapping characteristics that the three crimes have. Finally, the historical origins of the crimes, together with the significant overlaps, will be used to further the argument that a new era has dawned in international criminal law which necessitates the rethinking and reinterpretation of existing law to suit the needs of current realities.

The ‘Intensity’ Threshold in Article 8(2)(f) of the Rome Statute: The Conundrum Created by the Term ‘Protracted Armed Conflict’ and the Possibility of a New Category of Non-International Armed Conflict

by | Oct 25, 2019 | SAYIL, SAYIL 2017

The ‘Intensity’ Threshold in Article 8(2)(f) of the Rome Statute: The Conundrum Created by the Term ‘Protracted Armed Conflict’ and the Possibility of a New Category of Non-International Armed Conflict

Authors Martha M Bradley

ISSN: 2521-2583
Affiliations: None
Source: South African Yearbook of International Law, 2017, p. 42 – 79

Abstract

Article 8(2)(d) of the Rome Statute lists the war crimes over which the International Criminal Court may exercise jurisdiction, while article 8(2)(f) of the Rome Statute subsequently determines the type of armed conflict that must exist for jurisdiction to be triggered. Accordingly, article 8(2)(f) reads: ‘It applies to armed conflicts that take place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.’ This second part of article 8(2)(f) determines that the nature of an armed conflict must be ‘protracted’. The phrase ‘protracted armed conflict’ may or may not propose an additional (higher) threshold of violence requirement that must co-exist with the intensity of violence requirement inherent in the first part of the provision. This possibility fuels the debate that the notion of intensity inherent in article 8(2)(f) differs from that in article 8(2)(d) of the Rome Statute. If such an additional threshold of violence requirement under article 8(2)(f) of the Rome Statute exists, it may be argued that this provision creates a new category of non-international armed conflict unique to the Rome Statute. Available literature does not clarify this problem. Employing the rules of treaty interpretation, this article contemplates the meaning of the wording ‘protracted armed conflict’ in order to determine whether it is indeed possible that it introduces such a higher level of intensity.

Companies Act of 2008_The Use of Alternative Dispute Resolution Methods in Corporate Disputes_ The Provisions of the

by | Oct 25, 2019 | SAMLJ, SAMLJ V26 I3

Analyses: The Use of Alternative Dispute Resolution Methods in Corporate Disputes: The Provisions of the Companies Act of 2008

Authors Tobie Wiese

ISSN: 1996-2185
Affiliations: Former Senior Lecturer, Department of Commercial Law, University of
Source: South African Mercantile Law Journal, Volume 26 Issue 3, 2014, p. 668 – 677

Abstract

None

Abuse of Sequestration Proceedings in South Africa Revisited

by | Oct 25, 2019 | SAMLJ, SAMLJ V26 I3

Abuse of Sequestration Proceedings in South Africa Revisited

Authors Zingaphi Mabe, RG Evans

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, University of South Africa, Pretoria; Professor, Department of Mercantile Law, University of South Africa, Pretoria
Source: South African Mercantile Law Journal, Volume 26 Issue 3, 2014, p. 651 – 667

Abstract

None

Protection of Holders of Securities in the Offeree Regulated Company During Affected Transactions: General Offers and Schemes of Arrangement

by | Oct 25, 2019 | SAMLJ, SAMLJ V26 I3

Protection of Holders of Securities in the Offeree Regulated Company During Affected Transactions: General Offers and Schemes of Arrangement

Authors SM Luiz

ISSN: 1996-2185
Affiliations: Senior Research Associate, School of Law, University of KwaZulu-Natal, Durban
Source: South African Mercantile Law Journal, Volume 26 Issue 3, 2014, p. 560 – 586

Abstract

None