Evaluating Medico-Legal Jurisprudence of Félicien Kabuga’s Unfitness to Stand Trial for the Rwandan Genocide: A Socio-Historical Context

by | Apr 26, 2026 | AYIH, AYIH 2024

ARTICLE

Evaluating Medico-Legal Jurisprudence of Félicien Kabuga’s Unfitness to Stand Trial for the Rwandan Genocide: A Socio-Historical Context

Author: Charles A Khamala

ISSN: 2521-2621
Affiliations: Dean & Senior Lecturer, Faculty of Law, The Catholic University of Eastern Africa; Advocate of the High Court of Kenya
Source: African Yearbook on International Humanitarian Law, 2024, p. 1 – 42
https://doi.org/10.47348/AYIH/2024/a1

Abstract

For turning fugitive from international criminal justice for over two decades, Félicien Kabuga’s tainted reputation as ‘the financier of the Rwandan genocide’ lingers in popular discourse and public memory. This paper analyses the International Criminal Tribunal for Rwanda’s (ICTR) failure in bringing him to justice by not holding him responsible for atrocity crimes. In 2023, the United Nations Residual Mechanism for Criminal Tribunals terminated Kabuga’s case. Paradoxically, not only was he denied an opportunity to clear his name, but also the victims remained frustrated. This paper places the case in a historical context through the ‘machete thesis’, which alleges that Kabuga’s company imported half a million machetes through Kenya for use in the planned genocide. Curiously, after two decades, the prosecution dropped that thesis in favour of direct eyewitness testimony alleging that he trained the Interahamwe militia inside his compound. However, midway through the trial, Kabuga suffered dementia. Hence, this paper explores the politics of recognition and Judge El-Baaj’s insistence on the ‘support-based approach’ that emerges from the Convention on the Rights of Persons with Disabilities. The paper’s methodology involves interpreting conflicting judicial decisions in Kabuga’s case to understand how medico-legal jurisprudence determined his unfitness to stand trial. Finally, an examination is made of alternative trial procedures and possible substantive corporate responsibility. Societal consequences are reminiscent of the National Military Tribunal’s infamous acquittal of Alfried Krupp following World War II, despite his financing of Hitler’s Nazi Party. Arguably, the IRMCT’s legacy constitutes two failings. First, it violated Kabuga’s fundamental rights. Second, it contributed to ‘soft-core genocide denial’, resulting from inflicting further suffering on the Tutsi and moderate Hutu victims. They were not only denied symbolic justice, but also received no compensation from Kabuga’s frozen assets.

Sovereignty and Human Rights in Africa: Analysing Tanzania’s withdrawal from The African Court on Human and Peoples’ Rights

by | Apr 26, 2026 | AYIH, AYIH 2024

ARTICLE

Sovereignty and Human Rights in Africa: Analysing Tanzania’s withdrawal from The African Court on Human and Peoples’ Rights

Authors: Tasco R Luambano and Benedict A Minde

ISSN: 2521-2621
Affiliations: PhD in Human Rights and EAC Law, LLM in Human Rights and Constitutional Law (UDSM) and LLB (Mzumbe University). He is a senior lecturer at Mzumbe University, Mbeya Campus College, and a practising advocate in Tanzania Mainland. ORC-ID: 0000-0003-2619-8767; LLB (Sebastian Kolowa Memorial University). He is a tutorial assistant at Moshi Co-operative University, Moshi-Tanzania. ORC-ID: 0009-0001-0909-3712
Source: African Yearbook on International Humanitarian Law, 2024, p. 43 – 60
https://doi.org/10.47348/AYIH/2024/a2

Abstract

As regional human rights courts have become increasingly crucial in promoting and protecting human rights, a troubling trend has emerged: states withdrawing from these courts under the name of state sovereignty. Such a phenomenon threatens to undermine the very fabric of regional human rights protection, leaving vulnerable individuals without a remedial mechanism to address violations of their fundamental rights. This paper undertakes a critical examination of the complex context surrounding Tanzania’s withdrawal from the African Court on Human and Peoples’ Rights, addressing its legality and potential legal repercussions. This paper does so by comparing the European and Inter-American human rights systems. This article aims to shed light on the darker side of state sovereignty and its impact on the protection of human rights. Through this in-depth analysis, this paper aims to uncover the root causes of state withdrawal from regional human rights courts and provide actionable recommendations for promoting and protecting human rights at the regional level.

Buying its Way out of History? The Shortcomings of the 2021 German-Namibian ‘Joint Declaration’

by | Apr 26, 2026 | AYIH, AYIH 2024

ARTICLE

Buying its Way out of History? The Shortcomings of the 2021 German-Namibian ‘Joint Declaration’

Author: Mia Swart

ISSN: 2521-2621
Affiliations: BA LLB LLM PhD. Visiting Associate Professor University of the Witwatersrand & Visiting Associate Professor, Kuwait International Law University
Source: African Yearbook on International Humanitarian Law, 2024, p. 61 – 94
https://doi.org/10.47348/AYIH/2024/a3

Abstract

The question of reparations to the descendants of the victims of the Herero genocide remains unresolved. This article analyses the 2021 agreement (‘Joint Declaration’) between Germany and Namibia, and highlights its shortcomings. This article divides the critique of the Joint Declaration into the following parts: the timing of the agreement; the exclusionary nature of the negotiations process; the staggered nature of the payments; the government’s refusal to call the payment reparations, calling it instead ‘development aid’; the paternalistic tone of the agreement, as well as the fact that the agreement was made as ‘full and final settlement’. These points of critique reflect the Herero’s main concerns with the agreement. It argues that the major defects in the Joint Declaration were not addressed sufficiently in the renegotiated agreement of 2024. The article further considers the ongoing political and legal fallout of the Joint Declaration, the litigation arising from it, and the reactions of the affected groups to the Declaration.

Regulatory Capture and Geopolitical Resistance: Analysing State Behaviour in UN Negotiations on Private Military and Security Company Oversight

by | Apr 26, 2026 | AYIH, AYIH 2024

ARTICLE

Regulatory Capture and Geopolitical Resistance: Analysing State Behaviour in UN Negotiations on Private Military and Security Company Oversight

Author: Penny Spentzouris

ISSN: 2521-2621
Affiliations: BA LLB PGDip BCom (Hon) LLM MCom PhD Candidate (Wits); ORC-ID: 0009-0007-8893-0120; Member of PLA, IRFA, BATSETA; Affiliate Member of CISA; Associate Member of IISA and IRMSA; M Inst D of IODSA.
Source: African Yearbook on International Humanitarian Law, 2024, p. 95 – 119
https://doi.org/10.47348/AYIH/2024/a4

Abstract

The Open-ended Intergovernmental Working Group (OEIGWG) on Private Military and Security Companies represents a critical juncture in international law, where regulatory failure has become institutionalised through systematic bad faith negotiation. Since 2017, the Working Group has produced four successive draft instruments, yet it remains deadlocked, not due to technical disagreement but due to calculated obstruction by powerful states protecting a US$240 billion industry. This article advances three interconnected arguments substantiated through track changes analysis of the Third Revised Draft (March 2024) and Fourth Revised Draft (March 2025): (1) state opposition correlates directly with national PMSC market dominance, with home states (USA, UK, China, South Africa, Turkey, Russia) controlling 70% of the global market systematically objecting to substantive accountability provisions; (2) the sophistication of obstructionist tactics, from definitional narrowing to jurisdictional fragmentation, reveals regulatory capture through documented revolving door dynamics between government officials and corporate interests; (3) the distinction between home states (where PMSCs are registered) and host states (where they operate) explains voting patterns, with host states predominantly in the Global South consistently championing binding frameworks while bearing the human cost of PMSC violations spanning Mali, Central African Republic, Mozambique and Sudan. Voluntary frameworks, including the Montreux Document and the International Code of Conduct Association, have systematically failed to prevent violations or ensure accountability. The evidence presented, comprising economic data correlating market share with negotiating positions, comparative analysis of state positions on analogous regulatory frameworks, documented PMSC violations enabled by accountability gaps, and academic consensus on state motivations, demonstrates that complexity and sovereignty concerns cannot explain the systematic pattern of Western obstruction spanning eight years. The choice before the international community is binary and urgent: binding regulation prioritising human rights over corporate profits, or continued accommodation of systematic violations. This article argues for the exposure of hidden agendas, alternative regulatory pathways through regional frameworks and domestic legislation with extraterritorial reach, and prioritisation of victim compensation over state protection of corporate interests.

Sarah Leah Whitson & Michael Schaeffer Omer-Man From Apartheid to Democracy: A Blueprint for Peace in Israel-Palestine University of California Press 2025

Sarah Leah Whitson & Michael Schaeffer Omer-Man From Apartheid to Democracy: A Blueprint for Peace in Israel-Palestine University of California Press 2025

by | Apr 26, 2026 | AYIH, AYIH 2024

BOOK REVIEW

Sarah Leah Whitson & Michael Schaeffer Omer-Man From Apartheid to Democracy: A Blueprint for Peace in Israel-Palestine University of California Press 2025

Author: Mia Swart

ISSN: 2521-2621
Affiliations: Visiting Professor, University of the Witwatersrand. Visiting Associate Professor, Kuwait International Law University
Source: African Yearbook on International Humanitarian Law, 2024, p. 120 – 123
https://doi.org/10.47348/AYIH/2024/a5

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Mia Swart
Sarah Leah Whitson & Michael Schaeffer Omer-Man From Apartheid to Democracy: A Blueprint for Peace in Israel-Palestine University of California Press 2025
African Yearbook on International Humanitarian Law, 2024, p. 120 – 123
https://doi.org/10.47348/AYIH/2024/a5

Abstract

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Developments in the prevention and punishment of genocide after Rwanda: Actors, approaches and challenges

by | Jun 2, 2025 | AYIH, AYIH 2023

ARTICLE

Developments in the prevention and punishment of genocide after Rwanda: Actors, approaches and challenges

Authors: Linda Mushoriwa & John-Mark Iyi

ISSN: 2521-2621
Affiliations: Researcher at the African Centre for Transnational
Criminal Justice, Faculty of Law, University of the Western Cape; Professor and Director, African Centre for Transnational Criminal Justice, Faculty of Law, University of the Western Cape
Source: African Yearbook on International Humanitarian Law, 2023, p. 1 – 19
https://doi.org/10.47348/AYIH/2023/a1

Abstract

In May 2024, the African Centre for Transnational Criminal Justice hosted a conference to commemorate the 30th anniversary of the genocide against the Tutsis in Rwanda and the legal developments that have occurred since then. In line with the theme of the conference, ‘Genocides as Critical Junctures: in Search of an African Vision of International Criminal Justice’, 35 conference participants presented their papers on the different thematic areas. This introductory article provides an overview of the papers that were selected for publication in this issue of the African Yearbook on International Humanitarian Law (AYIHL). The article begins with a brief background of the history of genocide in colonial Africa, from the Herero and Nama genocide committed by Germany between 1904 and 1908 to the genocide against the Tutsis in Rwanda in 1994. It then outlines the issues addressed in the selected papers in this issue of AYIHL, such as the definition and interpretation of the term ‘genocide’, accountability for aiding and abetting the crime of genocide, and the role of transitional justice mechanisms as genocide prevention tools. The article concludes that the issues addressed call into question the commitment by various role players, including the regional economic communities and regional organisations, such as the African Union, to prevent and punish genocide.