Claiming genocide to justify aggressive wars: The case of Russia’s invasion of Ukraine and Rwanda’s expansionism in the Great Lakes region

by | Jun 2, 2025 | AYIH, AYIH 2023

ARTICLE

Claiming genocide to justify aggressive wars: The case of Russia’s invasion of Ukraine and Rwanda’s expansionism in the Great Lakes region

Author: Etienne Mutabazi

ISSN: 2521-2621
Affiliations: Adjunct Senior Lecturer, University of Iringa and Independent Consultant based in Johannesburg, South Africa
Source: African Yearbook on International Humanitarian Law, 2023, p. 20 – 48
https://doi.org/10.47348/AYIH/2023/a2

Abstract

In February 2022 the Russian Federation launched special military operations in Ukraine, alleging that the latter was committing genocide against the Russian-speaking population in the Donetsk and Luhansk regions, also known as ‘the Donbas’. This led Ukraine to file an application instituting proceedings against the Federation at the International Court of Justice for provisional measures to suspend such operations. It also denied Russia’s accusations of genocide. In the 1990s, Rwandan exiled Tutsis launched an attack to recapture power in their country, resulting in genocide. After lengthy court proceedings, the International Criminal Tribunal for Rwanda determined that genocide had been committed against the Rwandan Tutsis. Thereafter, and despite the Tribunal’s thought-through decisions and judgments, Rwanda’s President Kagame undertook a deceptive campaign, warning of impending genocide in Burundi in 2015, prompting the African Union to decide to deploy troops to prevent such atrocities. Burundi denied any threat of genocide. Also, since 1996, Rwanda has, on numerous occasions, intervened militarily in the Democratic Republic of Congo to, allegedly, prevent genocide against the Banyamulenge, also of Tutsi ethnicity. While international judicial institutions have laboured to ascertain the elements that constitute genocide, irresponsible claims of genocide continue to capture attention. Based on the relevant literature that addresses this burning issue, and some decisions and judgments of the United Nations ad hoc tribunals for Rwanda and the Former Yugoslavia, as well as those of the Extraordinary Chamber in the Courts of Cambodia, this article looks beyond the claim of genocide in the ongoing armed conflicts in the Great Lakes region and between Ukraine and the Russian Federation. The reality is that this claim is made by political leaders in a bid to serve their political agendas, despite legal efforts to clarify the legal requirements for a crime to be characterised as genocide. The article recommends the adoption of a supplementary convention that would reemphasise the requirements that any claims of genocide must meet to prevent its abuse and misuse, including in political discourses.

A case study of the use of the word ‘genocide’ as a campaigning and advocacy tool by the Congolese Action Youth Platform

by | Jun 2, 2025 | AYIH, AYIH 2023

ARTICLE

A case study of the use of the word ‘genocide’ as a campaigning and advocacy tool by the Congolese Action Youth Platform

Author: Rugenge wa Nciko

ISSN: 2521-2621
Affiliations: LLB candidate, Kabarak University Law School, Nakuru, Kenya; Head of Student Bureau of the Kabarak Law Clinic (CLACLE)
Source: African Yearbook on International Humanitarian Law, 2023, p. 49 – 77
https://doi.org/10.47348/AYIH/2023/a3

Abstract

This article critically examines the strategic use of the word ‘genocide’ by the Congolese Action Youth Platform (CAYP) as a powerful tool for campaigning and advocacy, rather than engaging in the debate over whether an actual genocide, within the current legal narrative, is, indeed, occurring in the eastern Democratic Republic of Congo (DRC). The study begins by exposing the international community’s indifference to the atrocities in the eastern DRC, underscored by the ineffectiveness of the United Nations Organisation Stabilisation Mission in the Democratic Republic of the Congo (MONUSCO), the International Criminal Court (ICC), the failure to establish an International Criminal Tribunal for Congo and the bias in international media coverage. The article then explores what CAYP is and how it has deliberately employed the word ‘genocide’ to draw global attention to the plight of the eastern DRC. This analysis further explores the theoretical and practical consequences of employing such a charged term within international criminal justice. Drawing on Ngũgĩ wa Thiong’o’s concept of the ‘politics of language’ and Mahmood Mamdani’s ‘politics of naming’, the article examines how language and naming can function either as tools of resistance against or as instruments of protection for the international criminal justice system. Finally, the article incorporates Balakrishnan Rajagopal’s perspective of legitimating narratives.

Accountability for aiding and abetting the Rwandan genocide: The obligation on South Africa to investigate and prosecute Willem ‘Ters’ Ehlers

by | Jun 2, 2025 | AYIH, AYIH 2023

ARTICLE

Accountability for aiding and abetting the Rwandan genocide: The obligation on South Africa to investigate and prosecute Willem ‘Ters’ Ehlers

Authors: Abongile Nkamisa and Jane Borman

ISSN: 2521-2621
Affiliations: Lawyers at Open Secrets
Source: African Yearbook on International Humanitarian Law, 2023, p. 78 – 98
https://doi.org/10.47348/AYIH/2023/a4

Abstract

Genocide is often prosecuted at the level of direct perpetrators, yet those who facilitate or enable mass atrocity—such as private arms dealers—remain largely unaccountable. This article investigates the case of Willem Petrus Jacobus ‘Ters’ Ehlers, a South African arms broker who supplied weapons to the Forces Armées Rwandaises during the final months of the 1994 Rwandan genocide, in violation of United Nations Security Council Resolution 918. Using a doctrinal and casestudy methodology, this article maps the evolution of the aiding and abetting doctrine in international criminal law—from Nuremberg to the International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and the Rome Statute—and applies its elements of actus reus and mens rea to Ehlers’s conduct. The analysis demonstrates that Ehlers provided substantial assistance by negotiating arms deals in the Seychelles, arranging logistics and air charters, and facilitating payments from Rwandan government agents – all actions that materially contributed to the perpetration of genocide. Drawing on evidence from the UN International Commission of Inquiry, tribunal judgments, and domestic sources, the article argues that Ehlers’s conduct satisfies the requisite knowledge and substantial impact tests for aiding and abetting liability. Turning to South Africa’s obligations, the article examines constitutional provisions (ss 231–232), the International Criminal Court Act and Constitutional Court jurisprudence, concluding that under customary international law and domestic statutes, South Africa has a binding duty to investigate and prosecute its nationals who enable genocide. It further dispels any statute‐of‐limitations barrier for crimes jus cogens. By spotlighting a singular actor, this study underscores the critical need for states to hold private enablers of atrocity accountable. It calls on South African authorities to fulfil their erga omnes obligations, thereby strengthening international criminal justice, deterring future genocides and affirming the rule of law.

Bridging past, present and future: The impact of Rwanda’s constitutional reform on transitional justice and genocide prevention

by | Jun 2, 2025 | AYIH, AYIH 2023

ARTICLE

Bridging past, present and future: The impact of Rwanda’s constitutional reform on transitional justice and genocide prevention

Author: Rita Ogao

ISSN: 2521-2621
Affiliations: LLB from the University of East Anglia
Source: African Yearbook on International Humanitarian Law, 2023, p. 99 – 122
https://doi.org/10.47348/AYIH/2023/a5

Abstract

Following the 1994 genocide against the Tutsi, Rwanda embarked on a transitional justice journey, with reconciliation, non-recurrence and memorialisation at the heart of the agenda. One of the key legal changes in the subsequent years was the promulgation of the Constitution of the Republic of Rwanda 2003. Given that constitutions serve as the supreme law of a nation, the specific language and substance wield the potential to shape a nation’s trajectory by prescribing the principles and values that underpin governance and everyday life. Drawing upon the symbolic weight of constitutional frameworks, this article explores how the Constitution of Rwanda 2003 embodies the imperative of ‘never again’, by denouncing the ideology that prevailed leading up to and during the 1994 genocide, signalling a new ideology conducive to reconciliation and entrenching principles of transitional justice in its provisions. This article seeks to illustrate how reconciliation, non-recurrence and institutional reform—all which are central to transitional justice mechanisms—are entrenched in the Constitution and how this plays out on both governance and societal levels. Using Rwanda as a case study, this article explores the transformative potential of constitutions as transitional justice and genocide prevention tools. Importantly, it asserts that the more explicitly a constitution signals a new ideology and addresses a nation’s past legacy of genocide or conflict, the higher the prospects of it serving as a transformative transitional justice and genocide prevention tool.

Safeguarding peace: The intergovernmental authority on development’s role in averting atrocities in the South Sudan conflict

by | Jun 2, 2025 | AYIH, AYIH 2023

ARTICLE

Safeguarding peace: The intergovernmental authority on development’s role in averting atrocities in the South Sudan conflict

Author: Mia Swart

ISSN: 2521-2621
Affiliations: Associate Professor, University of Sharjah
Source: African Yearbook on International Humanitarian Law, 2023, p. 123 – 146
https://doi.org/10.47348/AYIH/2023/a6

Abstract

The Intergovernmental Authority on Development (IGAD), established in 1986, has a mandate to promote peace, security and development in the Horn of Africa. This article seeks to critically analyse IGAD’s role in preventing genocide during the South Sudan conflict. By examining the key interventions, challenges and outcomes of IGAD’s mediation efforts, this article will explore the effectiveness of regional diplomacy in conflict prevention. The paper will also assess the limitations of IGAD’s approach and propose recommendations for strengthening its role in future peace processes. The analysis will focus on the period from 2013, when the conflict began, to the present, with a particular emphasis on the Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) signed in 2018. In doing so, this article aims to contribute to the broader discourse on conflict resolution and genocide prevention in Africa, providing insights that can inform both regional and international policymaking.

Hybrid Justice: Innovation and Impact in the Prosecution of Atrocity Crimes by Kirsten Ainley and Mark Kersten

by | Jun 2, 2025 | AYIH, AYIH 2023

BOOK REVIEW

Hybrid Justice: Innovation and Impact in the Prosecution of Atrocity Crimes by Kirsten Ainley and Mark Kersten

Author: Mia Swart

ISSN: 2521-2621
Affiliations: Associate Professor, University of Sharjah
Source: African Yearbook on International Humanitarian Law, 2023, p. 147 – 150
https://doi.org/10.47348/AYIH/2023/a7

Abstract

None

International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare by Marco Sassoli

by | Jun 2, 2025 | AYIH, AYIH 2023

BOOK REVIEW

International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare by Marco Sassoli

Author: André Stemmet

ISSN: 2521-2621
Affiliations: Former legal adviser, South African Department of International Relations and Cooperation, Senior Research Associate, University of Johannesburg.
Source: African Yearbook on International Humanitarian Law, 2023, p. 151 – 155
https://doi.org/10.47348/AYIH/2023/a8

Abstract

None

What’s in a sentence? MK & Zuma v The IEC

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

NOTES

What’s in a sentence? MK & Zuma v The IEC

Author: Simon Thompson

ISSN: 1996-2177
Affiliations: Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 2, p. 207-223
https://doi.org/10.47348/SALJ/v142/i2a1

Abstract

The Constitutional Court’s confirmation that former President Jacob Zuma was disqualified from standing as a candidate in South Africa’s general election on 29 May 2024 created waves throughout political and legal circles. In this case note, I assess the treatment of one particular legal issue on which a unanimous Electoral Court and a unanimous Constitutional Court reached opposite conclusions, namely whether Zuma’s sentence for contempt of court fell within the ambit of the disqualification provision contained in s 47(1)(e) of the Constitution. Through the prism of the practical, inclusive method of constitutional interpretation, I criticise the Electoral Court for its handling of the issue and deem its conclusion, namely that Zuma’s sentence fell outside the provision, to be manifestly wrong. By contrast, I commend the Constitutional Court for its handling of the issue and find its conclusion, namely that Zuma’s sentence fell within the provision, to be patently correct.

An executor’s remuneration — Some unease with ‘gross value’ as a point of departure for its calculation if a fiduciary’s interest and matrimonial property are involved

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

NOTES

An executor’s remuneration — Some unease with ‘gross value’ as a point of departure for its calculation if a fiduciary’s interest and matrimonial property are involved

Author: J C Sonnekus

ISSN: 1996-2177
Affiliations: Professor in Private Law, University of Johannesburg
Source: South African Law Journal, Volume 142 Issue 2, p. 224-247
https://doi.org/10.47348/SALJ/v142/i2a2

Abstract

An executor’s remuneration for the administration of the estate is determined according to a prescribed tariff in the absence of an explicit clause in the will, and the Master taxes it according to the gross value of assets in the estate. The executor is entitled to receive the appropriate remuneration out of the estate’s assets. If the gross value includes the value, for example, of the joint estate where the deceased was married in community of property or of a fideicommissary asset that formed part of the deceased’s estate as fiduciary assets, this inflated value translates into an enhanced calculated remuneration that the executor could receive out of the residue of the assets of the estate. This, in turn, results in the unjustified impoverishment of all other beneficiaries and is to the unjustified benefit of the fideicommissary.

The termination of a ‘permanent romantic relationship’ and the right to maintenance pendente lite: EW v VH & Women’s Legal Centre Trust

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

NOTES

The termination of a ‘permanent romantic relationship’ and the right to maintenance pendente lite: EW v VH & Women’s Legal Centre Trust

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University; Retired Justice of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 142 Issue 2, p. 247-259
https://doi.org/10.47348/SALJ/v142/i2a3

Abstract

Unmarried permanent life partnerships have become a common phenomenon in South Africa. In EW v VH 2023 (4) SA 123 (WCC), the Western Cape High Court had to deal with an application for maintenance pendente lite and a contribution towards costs following the termination of a ‘permanent romantic relationship’. Part of the application was a prayer for developing the common law to recognise a claim for ongoing maintenance for life partners. An interim and constitutionally sound remedy for such couples upon the breakdown of their relationship needed to be found in the interests of justice. We examine the court’s constitutional duty to promote the spirit, purport and objects of the Bill of Rights when developing the common law and conclude that the lack of maintenance pendente lite protection for life partners undoubtedly constitutes unfair discrimination against a traditionally disadvantaged group: unmarried, cohabiting women.