The Innocent Civilian, the Mandated Soldier and the Unlawful Fighter: A Re-Evaluation of the ‘Direct Participation in Hostilities’ Dilemma

by | Oct 1, 2019 | AYIH, AYIH 2016

The Innocent Civilian, the Mandated Soldier and the Unlawful Fighter: A Re-Evaluation of the ‘Direct Participation in Hostilities’ Dilemma

Authors Arthur van Coller

ISSN: 2521-2621
Affiliations: Associate Professor, Nelson R Mandela School of Law, University of Fort Hare
Source: African Yearbook on International Humanitarian Law, 2016, p. 65 – 84

Abstract

The Law of Armed Conflict (‘the LOAC’) incorporates terms and concepts that, on initial scrutiny, appear uncomplicated. However, the meaning and practical application of several concepts within the LOAC have often proven to be highly ambiguous and contested. The notion of ‘Civilian Direct Participation in Hostilities’ (‘C-DPH’), found, arguably, in Common Article 3 of the Geneva Conventions of 1949 and explicitly in Additional Protocol I of 1977, Article 51(3), and Additional Protocol II of 1977, Article 13(3), represents one such contested concept. C-DPH is a cornerstone concept in the LOAC and has attained the status of customary international law. On a conceptual level, civilians should be protected from intentional attack unless, and ‘for such time’, as they ‘directly participate in hostilities’. However, no definition of C-DPH or an indication of the actions that amount to C-DPH exist in the Geneva Conventions or in the Additional Protocols, despite the serious practical and legal consequences that may result from such participation. It is therefore imperative to establish a universal, comprehensive and practical definition of C-DPH.

Voluntary Human Shields in International Humanitarian Law: A Proposal for Suitable Future Regulation

by | Oct 1, 2019 | AYIH, AYIH 2016

Voluntary Human Shields in International Humanitarian Law: A Proposal for Suitable Future Regulation

Authors Marco Nel, Shannon Bosch

ISSN: 2521-2621
Affiliations: None; Attorney of the High Court of South Africa, Associate Professor in Law University of KwaZulu-Natal
Source: African Yearbook on International Humanitarian Law, 2016, p. 46 – 64

Abstract

The growing prevalence of voluntary human shields in recent asymmetric armed conflicts has exposed a significant lacuna in the existing international humanitarian law regime, which requires urgent regulation. In this article, we explore some of the challenges that any attempt at regulation must address, including assessing voluntariness and issues of capacity, limitations against direct participation in hostilities, the prohibition against shielding legitimate military targets, state responsibility, uniformity and concordance with existing international humanitarian law, and limiting targeting decisions motivated by reciprocity. We conclude with a proposal for the form and content of future regulation.

The Problem of Civil Contractors that Directly Participate in Hostilities

by | Oct 1, 2019 | AYIH, AYIH 2016

The Problem of Civil Contractors that Directly Participate in Hostilities

Authors Wyne Ken Mutuma

ISSN: 2521-2621
Affiliations: Lecturer (University of Nairobi), Advocate of the High Court of Kenya, Certified Public Secretary (Institute of Certified Public Secretaries, Kenya)
Source: African Yearbook on International Humanitarian Law, 2016, p. 8 – 45

Abstract

The past two decades have witnessed the emergence and rapid growth of private military and security contractors (PMSCs). Today these corporate entities make up a global security industry whose value is over US$100 billion. Their rapid rise has sparked enormous interest regarding the nature of the services they carry out on the battlefield — including services that constitute direct participation in hostilities — and whether the present legal regime governing armed conflict foresees, and adequately caters for, this peculiarity. International humanitarian law classifies all actors operating in armed conflicts as either combatants or civilians, conferring rights and obligations upon them on the basis of where it is that they fall in this divide. This article is of the view that the majority of PMSC personnel will be considered as civilians, a contradiction in view of the reality of their activities, and proceeds to highlight the potential consequences and challenges that arise from their present classification.

Private Prosecution of Crimes under International Law as a means to Combat Impunity in some African Countries: The Likely Challenges

by | Oct 1, 2019 | AYIH, AYIH 2017

Private Prosecution of Crimes under International Law as a means to Combat Impunity in some African Countries: The Likely Challenges

Authors Jamil Ddamulira Mujuzi

ISSN: 2521-2621
Affiliations: University of the Western Cape and Co-Director, South African-German Centre for Transnational Criminal Justice
Source: African Yearbook on International Humanitarian Law, 2017, p. 78 – 97

Abstract

Crimes under international law, that is, war crimes, crimes against humanity and genocide, have been criminalised in some African countries, such as, Uganda, South Africa, Mauritius, and Kenya through the domestication of the Rome Statute of the International Criminal Court. Courts in these countries have jurisdiction, including universal jurisdiction, over crimes under international law. There are on-going attempts by public prosecutors to prosecute war crimes in Uganda. In South Africa, the Constitutional Court held that South African public prosecutors and the police have a duty to investigate allegations of crimes against humanity committed outside South Africa. Although private prosecutions for crimes under international law are possible in these countries, there is no known case in which a private prosecution in Africa has been instituted against alleged war criminals. The purpose of this article is to demonstrate the challenges that may be faced in the institution of private prosecutions in Uganda, Kenya, South Africa and Mauritius against those who are alleged to have committed crimes under international law.

The ICC Pre-Trial Chamber’s Decision on South Africa’s Failure to Arrest and Surrender President Al Bashir: South Africa Escapes ‘Sanctions’!

by | Oct 1, 2019 | AYIH, AYIH 2017

The ICC Pre-Trial Chamber’s Decision on South Africa’s Failure to Arrest and Surrender President Al Bashir: South Africa Escapes ‘Sanctions’!

Authors Ntombizozuko Dyani-Mhango

ISSN: 2521-2621
Affiliations: University of the Witwatersrand
Source: African Yearbook on International Humanitarian Law, 2017, p. 37 – 77

Abstract

This article examines the South Africa Decision and the reasons of the Pre-Trial Chamber (‘PTC’) of the International Criminal Court (‘ICC’) for refusing to refer South Africa to the Security Council and/or the Assembly of States Parties (‘ASP’) after it was found to have failed to arrest and surrender President Al Bashir to the ICC in order to understand the PTC’s reasoning. The article therefore examines the South Africa Decision with a view to understand the PTC’s reasoning in contrast to its previous decisions and to examine the provisions of the Rome Statute on referrals and the consequences thereof. Further, since the provisions of the Rome Statute do not stipulate measures to be taken by the Security Council and the ASP against the states that fail to cooperate with the ICC requests, the article will also analyze the role played by the Security Council and the ASP in relation to the PTC referrals. The article argues that the PTC clarified its position on the obligations of states parties in relation to the arrest and surrender of a sitting Head of State not party to the Rome Statute in its finding. In addition, it argues that South Africa was in a unique and exceptional position, hence it escaped the referral to the ASP and/or the Security Council.