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Spousal testimonial privilege and marital communications privilege are distinct concepts, but both are underpinned by the same policy rationale: The desire to protect the sanctity of the marriage relationship, encourage communication between spouses, and to prevent a spouse from being faced with the moral dilemma of either telling the truth and risking the relationship or committing perjury to avoid incriminating the other spouse. Collectively, spousal testimonial privilege and marital communications privilege are referred to as the marital privileges in this article. The law indicates a clear policy choice in favour of protecting the marriage relationship as opposed to the public interest in ensuring that the maximum relevant evidence is placed before the court, by virtue of the existence of the marital privileges. In part one of this two-part article, the authors discuss the marital privileges and the rationales underpinning them. Then the article considers the problems with the marital privileges and whether the law needs reform. The authors discuss whether the marital privileges should be extended to include cohabitant life partners. It is argued that the law on marital privileges is arbitrary and incoherent and does not adequately reflect or take into account the types of relationships that exist in multicultural South African society. In part two, the authors discuss the position as regards the marital privileges in a constitutionally comparable democracy – that of Canada. Also considered is the position adopted by the European Court of Human Rights in respect of the marital communications privilege in the Netherlands.

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This contribution sets out to determine whether the degree of organisation that a non-state fighting unit has to meet to be classified as an organised armed group under art 8(2)( f) of the Rome Statute is similar to the requirements set out in art 1(1) of Additional Protocol II. The construct ‘protracted armed conflict’ was for the first time introduced in art 8(2)( f ) of the Rome Statute. Article 8(2)( f ) of the Rome Statute delineates the type of conflict in which the war crimes listed under art 8(2)(e) of the Rome Statute may be committed. The meaning attached to ‘protracted armed conflict’ as introduced by art 8(2)( f ) of the Rome Statute is obscure in that its application differs from the traditional definition of non-international armed conflict. However, in defining the nature of the conflict under art 8(2)( f ), the term ‘organised armed group’, first codified in art 1(1) of Additional Protocol II, is used. Furthermore, the war crimes listed in art 8(2)(e) are founded on the description of violations of the rules of international humanitarian law in Additional Protocol II. In these circumstances, it is possible under art 8(2)( f ) that an organised armed group must meet the organisational criteria required by art 1(1) of Additional Protocol II. On the other hand, the construct ‘protracted armed conflict’ may create an entirely new category of organised armed groups unique to art 8(2)( f ) of the Rome Statute. The most straightforward explanation is that the organisational criteria under art 8(2)( f ) simply are similar to the requirements under art 8(2)(d) of the Rome Statute.

As reflected in the Ntaganda Decision of Trial Chamber VI of the International Criminal Court on 8 July 2019, conflict classification is crucial to war crime adjudication as a nexus is required between war crimes and the arena in which they are committed. An initial step the International Criminal Court undertakes in prosecuting war crimes is to determine whether or not an armed conflict existed at the time the alleged crime was committed and to classify that conflict. As confirmed by the 2018 War Report, the majority of armed conflicts are non-international in nature, and violations of international humanitarian law constituting war crimes in all probability are most likely to occur in this context. As recorded, the majority of investigations into war crimes as well as current cases relating to the alleged commission of war crimes adjudicated by the ICC occurred in the context of non-international armed conflict. Many of the crimes being investigated or tried are included in the listing in art 8(2)(e) and, therefore, transpire in art 8(2)( f )-type armed conflicts. It is important to gain certainty as to the organisational threshold requirement to be satisfied in establishing whether there is a ‘protracted armed conflict’ under art 8(2)( f) of the Rome Statute. The author offers preliminary conclusions in relation to the conundrum by interrogating the traditional sources of international law.