The Conditional Early Release of Offenders Transferred from the Special Court for Sierra Leone to Serve Their Sentences in Designated States: Some Observations and Recommendations

by | Oct 1, 2019 | AYIH, AYIH 2014

The Conditional Early Release of Offenders Transferred from the Special Court for Sierra Leone to Serve Their Sentences in Designated States: Some Observations and Recommendations

Authors Jamil Ddamulira Mujuzi

ISSN: 2521-2621
Affiliations: Associate Professor of Law, Faculty of Law, University of the Western Cape, and Research Fellow, Community Law Centre, University of the Western Cape
Source: African Yearbook on International Humanitarian Law, 2015, p. 154 – 170

Abstract

None

In the Eye of the Storm: The Kenyatta Case and the Dispute Between the African Union and the International Criminal Court

by | Oct 1, 2019 | AYIH, AYIH 2014

In the Eye of the Storm: The Kenyatta Case and the Dispute Between the African Union and the International Criminal Court

Authors Mia Swart

ISSN: 2521-2621
Affiliations: Professor of International Law, University of Johannesburg
Source: African Yearbook on International Humanitarian Law, 2015, p. 133 – 153

Abstract

None

The ICRC Study on Customary International Humanitarian Law as Viewed through the Prism of 14th-18th Century Jurisprudential Thought

by | Oct 1, 2019 | AYIH, AYIH 2014

The ICRC Study on Customary International Humanitarian Law as Viewed through the Prism of 14th-18th Century Jurisprudential Thought

Authors Albert Nell

ISSN: 2521-2621
Affiliations: Lecturer, Department of Constitutional Law and Philosophy of Law, University of the Free State
Source: African Yearbook on International Humanitarian Law, 2015, p. 1 – 43

Abstract

None

Universal Jurisdiction under Fire in South Africa

by | Oct 1, 2019 | AYIH, AYIH 2015

Universal Jurisdiction under Fire in South Africa

Authors Christopher Burke

ISSN: 2521-2621
Affiliations: State Advocate, Director of Public Prosecutions, Cape Town
Source: African Yearbook on International Humanitarian Law, 2015, p. 118 – 144

Abstract

On 16 June 2015 Omar al-Bashir (Bashir), president of Sudan, safely left South Africa amid public outcries and despite a High Court warrant for his arrest. Rumours are rife that government was secretly facilitating his escape while assuring the court of his presence in South Africa. Intense debate has ensued about government’s apparent slighting of the courts and the Constitution. Building on this debate, this article aims to provide some perspective by focusing more on the international criminal law aspects involved and specifically on a contentious principle known as universal jurisdiction. Initiated by the Bashir incident, this article aims to consider the South African Government’s handling of the Bashir incident by providing a broader philosophical understanding of universal jurisdiction, its development and current application in international law. This incident emphasized the schizophrenic behaviour of South Africa’s leaders who say one thing and do something else and try their hardest to sidestep their own laws. That they chose the grandest possible stage to do this on is both unfortunate and embarrassing. The article argues that other future situations will not be so clear cut (ie, with Security Council sanction and backing) and before there is widespread public panic over government’s blatant disregard of the courts and the Constitution the intricacies of international law and politics should be kept in mind. The lack of precedent for universal jurisdiction as well as the cautious way other states deal with it should convince us that it is a complex concept guaranteed to cause a clash between courts and government. Universal jurisdiction based, as it currently is, on the fleeting presence of an offender in South Africa creates more problems than it solves and should perhaps be amended to require a stronger link (such as a measure of permanent residence) in line with the majority approach followed by states internationally.

The Prosecution in South Africa of International Offences Committed Abroad: The Need to Harmonise Jurisdictional Requirements and Clarify Some Issues

by | Oct 1, 2019 | AYIH, AYIH 2015

The Prosecution in South Africa of International Offences Committed Abroad: The Need to Harmonise Jurisdictional Requirements and Clarify Some Issues

Authors Jamil Ddamulira Mujuzi

ISSN: 2521-2621
Affiliations: Associate Professor of Law, Faculty of Law, University of the Western Cape
Source: African Yearbook on International Humanitarian Law, 2015, p. 96 – 117

Abstract

There are two broad exceptions to the general rule that South African courts do not have jurisdiction over offences committed outside South Africa. The first set of exceptions developed by South African courts deals with offences of treason and theft. The second set of exceptions was created by the legislature and includes national and international offences. The prosecution of international offences is based on the principle of universal jurisdiction. This article examines the relevant statutory provisions relating to the offences of torture, terrorism, grave breaches of the Geneva Conventions, war crimes, crimes against humanity and genocide. It will recommend that there is a need for the relevant legislation to be amended to eliminate the ambiguities that relate to the following issues: the place where the suspect has been arrested or found; courts with jurisdiction over the offence and the individual responsible for authorising the prosecution of the offence and designation of the court; the expiry of the right to prosecute; and the prosecution of acts or omissions which took place before the commencement of the Acts.