The Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17-An Aborted Take Off

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

The Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17-An Aborted Take Off

Authors Angelo Dube

ISSN: 2522-3062
Affiliations: Associate Professor, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 362 – 379

Abstract

On 17 July 2014, Malaysia Airlines Flight MH17, a civilian aircraft on an international flight was downed whilst overflying the airspace above Donetsk Oblast, Ukraine, leading to the loss of a life for all on board. The flight manifest indicated fifteen crew plus 283 passengers on board. There were eleven affected countries whose nationals perished. The United Nations Security Council swiftly issued a press statement in which it called upon all member states to cooperate with investigations; and to assist in bringing all those responsible to justice. Thus, the United Nations Security Council adopted Resolution 2166 in 2014. A year later, on Malaysia’s insistence, a draft resolution was tabled before the United Nations Security Council to create a tribunal to punish those responsible for the Flight MH17 disaster. This endeavour failed when the Russian Federation used its veto power to block the draft resolution. Whilst the efforts to give justice to victims of the crash are commendable, there remains some doubt over the efficacy of the piecemeal approach to punishing crimes of international air law, especially given the high politicisation of international law itself. The questions to be answered, therefore are whether current international air law sufficiently provides for the punishment of perpetrators of crimes involving aircraft and whether the veto by Russia impedes or advances the fight against impunity in international air law.

Taming the Boko Haram Menace, Observing Human Rights: An Examination of the Dilemma of States in the Lake Chad Basin Region

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

Taming the Boko Haram Menace, Observing Human Rights: An Examination of the Dilemma of States in the Lake Chad Basin Region

Authors Nelson E Ojukwu-Ogba, Patrick C Osode

ISSN: 2522-3062
Affiliations: Post-doctoral Fellow, University of Fort Hare, South Africa; Professor and Head, Department of Mercantile Law, University of Fort Hare, South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 339 – 361

Abstract

Heightened insecurity, widespread human displacement and gross destruction of critical infrastructure have become commonplace in states bordering on the Lake Chad Basin due to the Boko Haram insurgency. In searching for a lasting solution to tame the menace of the insurgency, the affected states, namely, Nigeria, Cameroon, Chad and the Niger Republic, are faced with the dilemma of seeking to defeat the insurgency on the one hand and protecting the human rights of persons in the insurgency- affected areas on the other hand. However, the problem goes beyond the dilemma conundrum. The roots are traceable to geographical, political and socio-economic factors that need to be addressed. This paper examines the said dilemma and identifies the factors that fuel the insecurity. It also explores the best ways of addressing the dilemma in order to fix the causative problems and stop or minimise loss of human life, reduce human displacements and restore peace and stability to the Lake Chad Basin region, while rebuilding critical socio-economic infrastructure for the communities in the epicentre of the insurgency.

A Constitutional and a Comparative Analysis of a Search Warrant in South African Criminal Procedure

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

A Constitutional and a Comparative Analysis of a Search Warrant in South African Criminal Procedure

Authors Vinesh M Basdeo

ISSN: 2522-3062
Affiliations: Professor, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 320 – 338

Abstract

This article analyses ‘search and seizure’ in the South African criminal justice system as is made possible by Chapter 2 of the Criminal Procedure Act, [fn1] which provides for search warrants, the entering of premises, and the seizure, of property connected with offences. The primary objective of this article is to determine whether the search and seizure measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the ‘spirit, purport and object’ of the Constitution. [fn2] It determines whether the required judicial scrutiny provides a real control upon the exercise of search and seizure powers. Relating to this, but a distinct issue in itself is the sufficiency of information provided by the applicant to the issuer of the warrant. Proof of reasonable grounds to believe not only that an offence has been committed, but also that there will be evidence of it on the premises to be searched may be necessary to comply with the derogation from the right to privacy contained in section 14 of the South African Constitution. Search and seizure legal principles extracted from United States criminal procedure will be analysed for comparative purposes. footnote 1: Chapter 2 of the Criminal Procedure Act 51 of 1977 (hereinafter the ‘Criminal Procedure Act’). footnote 2: Constitution of the Republic of South Africa, 1996 Act 108 of 1996.

International Tax Competition, Harmful Tax Practices and the ‘Race to the Bottom’: A Special Focus on Unstrategic Tax Incentives in Africa

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

International Tax Competition, Harmful Tax Practices and the ‘Race to the Bottom’: A Special Focus on Unstrategic Tax Incentives in Africa

Authors Annet Wanyana Oguttu

ISSN: 2522-3062
Affiliations: Professor in the Department of Taxation at the Faculty of Economic and Management Sciences, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 293 – 319

Abstract

Countries often adopt competitive tax policies to encourage foreign investment or discourage the exodus of investments. However, the tax policies that countries adopt may result in harmful tax competition if they affect another country’s tax polices whereby they are forced to adopt lower tax rates to remain competitive. The resultant harmful tax practices can lead to a ‘race to the bottom’ which can ultimately drive applicable tax rates to zero for all countries. In addressing this problem, the OECD BEPS Project concentrated on harmful tax practices by preferential tax regimes. However, in Africa, the pertinent harmful tax practice that leads to the race to the bottom, is the granting of unstrategic tax incentives to foreign investors in the hopes of encouraging foreign direct investment. This article discusses the fiscal challenges of granting unstrategic tax incentives at domestic level and their harmful implications at level which lead to a race to the bottom which poses spill-over effects on other countries. Recommendations are offered to ensure the efficiency and effectiveness of domestic tax incentives by improving on their design, transparency and administration. Recommendations are also offered to prevent the race to the bottom at international level by encouraging tax coordination at the regional level.

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