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.

The Approach of African Human Rights Treaty Bodies to International Humanitarian Law: Normative Basis and Institutional Practice

by | Oct 1, 2019 | AYIH, AYIH 2017

The Approach of African Human Rights Treaty Bodies to International Humanitarian Law: Normative Basis and Institutional Practice

Authors Brian Sang YK

ISSN: 2521-2621
Affiliations: Egerton University
Source: African Yearbook on International Humanitarian Law, 2017, p. 1 – 36

Abstract

Unlike comparable human rights systems, there is scant literature on how the African system interacts with international humanitarian law (IHL). This article contributes toward filling this gap by assessing how and to what extent African human rights treaty bodies have been or can be utilised to induce compliance with IHL. It analyses legal and institutional bases for engagement with IHL, as reflected in the work of the African Commission on Human and Peoples’ Rights, African Court on Human and Peoples’ Rights, and African Committee of Experts on the Rights and Welfare of the Child, as well as the future role of the African Court of Justice and Human Rights. It argues that the African human rights system can strengthen the implementation of IHL because most African Union-based legal instruments integrate human rights law and IHL, thus providing an enabling normative basis for the respective human rights treaty bodies to have regard to IHL. Yet the practice of African treaty bodies demonstrates that this advantage is under-utilised by the lack of systematic articulation of the effect of the IHL/human rights law relation and inconsistent approaches to engaging with IHL.

Current Development: The United States of America v Jucontee Thomas Woewiyu: How Immigration Fraud in the US Unearthed Old War Crimes in Liberia

by | Oct 1, 2019 | AYIH, AYIH 2018

Current Development: The United States of America v Jucontee Thomas Woewiyu: How Immigration Fraud in the US Unearthed Old War Crimes in Liberia

Authors Yulia Nuzban

ISSN: 2521-2621
Affiliations: None
Source: African Yearbook on International Humanitarian Law, 2018, p. 146 – 156

Abstract

When Jucontee Thomas Woewiyu applied for US citizenship in January 2006, he set in motion a series of events that would eventually lead to his conviction in July 2018 in connection with old human rights violations and war crimes committed during a civil war in Liberia. In the intervening years, the case was investigated and prosecuted by the US war crimes units — specialised entities responsible for the investigation and prosecution of international crimes. Although Woewiyu was found guilty of immigration fraud and not war crimes proper, his trial and conviction provide a robust record of war crimes committed during an armed conflict in Liberia, document Woewiyu’s role as one of the NPFL leaders, and give a measure of justice to the victims.

Ensuring that State Parties to the Roman Statute Co-operate with ICC Requests to Arrest and Surrender Suspects: Reflecting on the Role of the Security Council through the Lens of the Responsibility to Protect (R2P)

by | Oct 1, 2019 | AYIH, AYIH 2018

Ensuring that State Parties to the Roman Statute Co-operate with ICC Requests to Arrest and Surrender Suspects: Reflecting on the Role of the Security Council through the Lens of the Responsibility to Protect (R2P)

Authors Suzgo Lungu, Ntombizozuko Dyani-Mhango

ISSN: 2521-2621
Affiliations: PhD candidate, School of Law, University of the Witwatersrand, Johannesburg; Associate Professor, University of Witwatersrand, Johannesburg
Source: African Yearbook on International Humanitarian Law, 2018, p. 119 – 145

Abstract

More than a decade has passed since the International Criminal Court (ICC) issued two warrants for the arrest of the former president of Sudan, Al Bashir, who is accused of committing international crimes in Darfur. The arrest warrants were accompanied by ICC requests to states parties to the Rome Statute of the ICC to arrest and surrender Al Bashir to the ICC. However, a few states parties welcomed Al Bashir to their territories and failed to arrest and surrender him to the ICC, thus breaching their international obligations. The ICC has referred some of the transgressing states parties to the United Nations Security Council (UNSC), but the UNSC has failed to act against them. This article examines the role of the UNSC in enforcing state cooperation with ICC requests to arrest and surrender suspects to the ICC. We argue that states that fail to cooperate with ICC requests to arrest and surrender those who are suspected of international crimes threaten international peace and security. Therefore, the UNSC must invoke its Chapter VII powers in the UN Charter, and must be guided by the Responsibility to Protect (R2P) in order to enforce ICC requests when a transgressing state is referred to it.

An Analysis of the Principles on the Award of Reparations per Article 75(1) and (2) of the Rome Statute of the ICC

by | Oct 1, 2019 | AYIH, AYIH 2018

An Analysis of the Principles on the Award of Reparations per Article 75(1) and (2) of the Rome Statute of the ICC

Authors Avitus A Agbor

ISSN: 2521-2621
Affiliations: Research Professor of Law, Faculty of Law, North-West University, Mafikeng Campus, South Africa
Source: African Yearbook on International Humanitarian Law, 2018, p. 98 – 118

Abstract

The award of reparations to victims of serious crimes is quite unprecedented in the pursuit of international criminal justice. In this regard, the Rome Statute of the International Criminal Court (hereafter Rome Statute of the ICC) stands out as it contains arrangements for the award of reparations to victims of crimes over which the Court has jurisdiction. Article 75(1) of the Rome Statute of the ICC mandates the Court to develop principles governing the award of reparations while Article 75(2) grants the Court a discretionary power to make an order for individual and/or collective reparations. So far, three cases concluded by the Court have moved to the reparations phase, laying down the jurisprudential architecture for what principles will be applied in the award of reparations. Using the jurisprudence of the Court on the establishment of principles on the award of reparations, this paper unpacks some of the technicalities therein; examines the relationship between the Court and the Trust Fund for Victims established under Article 79 of the Rome Statute of the ICC, especially in cases where the convicted person is found to be indigent; and considers whether the Court has any kind of control over the resources of the Trust Fund for Victims.