Customary international humanitarian law: An overview of Kenya’s state practice in the post-2010 Constitution era

by | Sep 14, 2021 | AYIH, AYIH 2020

Customary international humanitarian law: An overview of Kenya’s state practice in the post-2010 Constitution era

Author: Kenneth Wyne Mutuma

ISSN: 2521-2621
Affiliations: Senior Lecturer at the School of Law, University of Nairobi, and an IHL practitioner
Source: African Yearbook on International Humanitarian Law, 2020, p. 121 – 158
https://doi.org/10.47348/AYIH/2020/a5

Abstract

With the exception of the shifta wars in the northern part of the country, Kenya has, for the greater part of its post-colonial history, enjoyed relative conditions of peace. This, in turn, has affected the volume of and quality of knowledge on Kenya’s state practice on international humanitarian law (IHL). The Customary IHL study of the International Committee of the Red Cross (ICRC) in 2005 reviewed state practice in the country at the time, based on materials such as military manuals, national laws and case law. However, since 2005, two significant events have had a direct bearing on the country’s IHL state practice. The first is the ushering in of a new constitutional order through the Constitution of Kenya, 2010, and the second is the Kenyan military troops’ incursion into Somalia against the Somali terrorist group, Al-Shabaab. This paper looks at the significant ways in which these two events have led to key additions to Kenya’s state practice, under four main headings: military manuals, national laws, court cases and other sources.

External and internal common legal representation of victims at the International Criminal Court: Beyond the ‘Kenyan trial approach’

by | Sep 14, 2021 | AYIH, AYIH 2020

External and internal common legal representation of victims at the International Criminal Court: Beyond the ‘Kenyan trial approach’

Author: Charles A Khamala

ISSN: 2521-2621
Affiliations: Senior lecturer, Africa Nazarene University Law School and Academic Leader, Criminal Justice and Security Management Programme; PhD in Droit Privé (Sciences Criminelles) Université de Pau et des Pays de l’Adour (mention trés honourable); LLM (University of London); LLB (Hons) (University of Nairobi); PGDip (KSL); Member ADC-ICT, List of Counsel: ICC, IRMCT, AfCHPR, ECCC, ICJ(K), ILA, ANCL and WSV; advocate of the High Court of Kenya
Source: African Yearbook on International Humanitarian Law, 2020, p. 159 – 191
https://doi.org/10.47348/AYIH/2020/a6

Abstract

The International Criminal Court (ICC) is primarily mandated to punish persons bearing the greatest responsibility for the worst crimes known to mankind. Additionally, its victim reparations are contingent on conviction; because of this, the Rome Statute’s retributive goal is compounded with the inquisitorial function of seeking the truth by realising the victim’s entitlement to participate at appropriate stages throughout the proceedings. However, the suspect’s due process rights must remain protected. While the Court balances these procedural functions, victims’ representatives determine which victims are members of the appropriate constituency. This paper’s theoretical framework shows how victims are vulnerable to their representative’s claims. Therefore, the question arises as to whether external or internal legal representation will be more effective for victims. This determines how victims’ voices may best be elicited. Some victimologists contend that the exclusion of an external Common Legal Representative (CLR) in the search of mass atrocity solutions promotes merely symbolic, rather than meaningful, victim participation in ICC proceedings. The Court insists on external CLRs because of their local knowledge. Others emphasise the proximity of the Office of the Public Counsel for Victims (OPCV) to judges as providing access to justice at The Hague. Crucially, by requiring the OPCV to interface between the external CLR and the Chamber in day-to-day proceedings, the ‘Kenyan trial approach’ has made victims’ participation more meaningful. Yet, following the Ruto and Sang case, the ICC faces challenges when confronted with diverse modalities of implementing reparations for multiple victims. In the Palestine situation, claims seeking to promote victims’ interests required victim empowerment, including strengthening appropriate victim constituencies through outreach to enable them to articulate disagreements with their representatives. In the Ongwen case, a broad interpretation gave victims’ voices enhanced agency over the defence. Recently, in Ntaganda’s case, the Court directed the Registry to liaise not only with the CLRs but also with the Trust Fund for Victims for appropriate outreach and communication with victims.

How effective have African truth commissions been?

by | Sep 13, 2021 | AYIH, AYIH 2020

How effective have African truth commissions been?

Author: William Gumede

ISSN: 2521-2621
Affiliations: Associate Professor, School of Governance, University of the Witwatersrand, Johannesburg
Source: African Yearbook on International Humanitarian Law, 2020, p. 192 – 208
https://doi.org/10.47348/AYIH/2020/a7

Abstract

The study is a critical review of several African countries’ attempts to seek justice, truth and lasting peace after deadly conflict through the mechanisms of transitional justice, specifically through the establishment of truth and reconciliation commissions or equivalent structures. Outcomes for African commissions have been mixed. Some met with genuine success. Some were obviously ineffective, neither uncovering the truth, nor bringing justice to the victims or holding perpetrators accountable. The review will analyse why some African truth commissions have performed better, while others have been widely condemned as failures and missed opportunities. It will outline lessons for other African countries considering setting up truth commissions or related transitional justice mechanisms to tackle the legacies of a violent past, to bring justice, and to forge reconciliation and lasting peace.

Book Review: Marketing Global Justice – The Political Economy of International Criminal Law, by Christine Schwöbel-Patel (2021)

Book Review: Marketing Global Justice – The Political Economy of International Criminal Law, by Christine Schwöbel-Patel (2021)

by | Sep 13, 2021 | AYIH, AYIH 2020

Book Review: Marketing Global Justice – The Political Economy of International Criminal Law, by Christine Schwöbel-Patel (2021)

Author: Mia Swart

ISSN: 2521-2621
Affiliations: N/A
Source: African Yearbook on International Humanitarian Law, 2020, p. 209 – 213
https://doi.org/10.47348/AYIH/2020/a8

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Abstract

None

Book Review: Soviet Judgment at Nuremberg – A New History of the International Military Tribunal after World War II, by Francine Hirsch (2020)

by | Sep 13, 2021 | AYIH, AYIH 2020

Book Review: Soviet Judgment at Nuremberg – A New History of the International Military Tribunal after World War II, by Francine Hirsch (2020)

Author: Gerhard Kemp

ISSN: 2521-2621
Affiliations: University of Derby, United Kingdom
Source: African Yearbook on International Humanitarian Law, 2020, p. 214 – 216
https://doi.org/10.47348/AYIH/2020/a9

Abstract

None

Peacekeepers and sexual violence: The disjuncture between domestication and implementation

by | Apr 27, 2021 | AYIH, AYIH 2019

Peacekeepers and sexual violence: The disjuncture between domestication and implementation

Authors: Ntemesha Maseka and David Abrahams

ISSN: 2521-2621
Affiliations: LLB LLM (cum laude). LLD Candidate, Nelson Mandela University; BJuris LLB LLM (UPE) LLM (UNIGE, Switzerland) 
Source: African Yearbook on International Humanitarian Law, 2019, p. 1 – 24

Abstract

Sexual exploitation and abuse by United Nations peacekeepers are prevalent in contemporary armed conflicts. Peacekeepers who commit these crimes against the local population do so with impunity. This article grapples with whether a lacuna in the existing law causes the impunity and thus lack of accountability of peacekeepers who commit such acts. International humanitarian law absolutely prohibits sexual violence at all times and against anyone. Moreover, sexual violence as a violation of international humanitarian law constitutes a war crime. There is a complex relationship between international and national law applicable to peacekeepers when they commit a crime, however, the law, at least in the South African case, is not deficient.