Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

by | Sep 14, 2021 | AYIH, AYIH 2020

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

Author: Dire Tladi

ISSN: 2521-2621
Affiliations: Professor of International Law, University of Pretoria; Member of the UN International Law Commission and its Special Rapporteur on Peremptory Norms of General International Law (Jus Cogens).
Source: African Yearbook on International Humanitarian Law, 2020, p. 1 – 14
https://doi.org/10.47348/AYIH/2020/a1

Abstract

In 2019 the International Law Commission adopted two texts providing for the peremptory character of the prohibition of crimes against humanity, namely the draft articles on the prevention and punishment of crimes against humanity and the draft conclusions on peremptory norms of general international law. While both of these instruments recognise the peremptory character of the prohibition of crimes against humanity, neither of them address the consequences of the peremptory character of the prohibition of crimes against humanity. This article, on the basis, inter alia, of the internal processes leading to the adoption of these instruments, addresses the consequences of the peremptory character of the prohibition of crimes against humanity.

Rights enforcement in the African Human Rights Court: Restrictiveness, progressivity and resistance

by | Sep 14, 2021 | AYIH, AYIH 2020

Rights enforcement in the African Human Rights Court: Restrictiveness, progressivity and resistance

Author: Lilian Chenwi

ISSN: 2521-2621
Affiliations: LLB, LLM, LLD, dip IPHU. Professor, School of Law, University of the Witwatersrand
Source: African Yearbook on International Humanitarian Law, 2020, p. 15 – 43
https://doi.org/10.47348/AYIH/2020/a2

Abstract

Africa is characterised by, inter alia, oppressive political systems, a culture of impunity of those who govern, and the use of state sovereignty mantra in the face of gross and systematic rights violations. Yet, African states have, through the establishment of the African Human Rights Court, created an avenue for judicial scrutiny of their laws and executive action that affect human rights. While the Court holds great promise in relation to fighting impunity and the provision of effective remedies for rights violations, ensuring respect for human rights, and fostering Africa’s quest for good governance, development and regional integration, it operates amidst state resistance and other complexities, which threaten its effectiveness and existence. This article considers whether, against this background, the Court has shown restrictiveness or progressivity in its enforcement of rights.

Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes

by | Sep 14, 2021 | AYIH, AYIH 2020

Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes

Author: Mispa Roux

ISSN: 2521-2621
Affiliations: LLB LLM (International Law) LLD (International Law) (UJ); Senior Lecturer in the Department of Public Law, Faculty of Law, University of Johannesburg; Deputy Director of the South African Institute for Advanced Constitutional, Public, Human Rights, and International Law (SAIFAC), a Centre of the University of Johannesburg.
Source: African Yearbook on International Humanitarian Law, 2020, p. 44 – 77
https://doi.org/10.47348/AYIH/2020/a3

Abstract

One of the core characteristics of international crimes is that they are committed on a great scale; therefore, the sheer volume and complexity of evidence required to justify investigation and ultimately prosecution inevitably leads to several challenges. Since the first time that persons were held individually criminally responsible at an international level at Nuremberg and in the Far East, to the way in which the permanent International Criminal Court fulfils its mandate, investigating and prosecuting international crimes have involved manifold challenges. This article identifies three challenges faced by international criminal courts and tribunals in investigating and prosecuting international crimes. The first challenge is the investigation phase of international criminal proceedings, specifically the difficulty of selecting cases and identifying persons with the greatest responsibility for the crimes. The second challenge flows from the first, specifically in light of the magnitude of evidence indicating the required gravity to pursue further investigation and eventually prosecution. This raises the difficult question whether investigators, prosecutors, and judges are able to consistently comply with their duty to respect and protect the various fair trial rights to which suspected and accused persons are entitled. The third and final challenge that will be engaged with in this article relates to the formidable impact of international and political relations at all stages of investigation and prosecution of international crimes, which may ultimately thwart compliance with the obligation to prosecute international crimes.

Reflections on humanitarian law dimensions of the African Union Convention for the protection and assistance of internally displaced persons in Africa

by | Sep 14, 2021 | AYIH, AYIH 2020

Reflections on humanitarian law dimensions of the African Union Convention for the protection and assistance of internally displaced persons in Africa

Author: Steve Tiwa Fomekong

ISSN: 2521-2621
Affiliations: Postdoctoral research fellow at the Centre d’études et de recherches de l’Université de Montréal in Canada; PhD in Law from Université Laval
Source: African Yearbook on International Humanitarian Law, 2020, p. 78 – 120
https://doi.org/10.47348/AYIH/2020/a4

Abstract

While significant attention has thus far been paid to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), the rules of humanitarian law that it sets out have not yet been the subject of a specific in-depth analysis. This contribution aims to fill this gap in the literature. It specifically examines the humanitarian law rules contained in the Kampala Convention to determine their meaning and scope, as well as their contribution to strengthening international humanitarian law (IHL). It begins by analysing the articulation of these regional humanitarian rules with the universal rules of IHL that preceded them to determine whether there is any divergence between them. Next, the paper attempts to determine the extent to which the humanitarian law provisions of the Kampala Convention enrich the legal protections provided by IHL for the improvement of the plight of internally displaced persons from armed conflict. Finally, with an approach centred around making suggestions for law reform, the paper demonstrates why and how these rules should inspire the future development of conventional and customary norms that would assist with the challenges of conflict-induced displacement.

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.