The killing fields of Matabeleland: An examination of the Gukurahundi genocide in Zimbabwe

by | Nov 19, 2022 | AYIH, AYIH 2021

The killing fields of Matabeleland: An examination of the Gukurahundi genocide in Zimbabwe

Author: Siphosami Malunga

ISSN: 2521-2621
Affiliations: LLB (Zimbabwe) LLM (Oslo) PhD candidate (International Law) (Wits)
Source: African Yearbook on International Humanitarian Law, 2021, p. 1 – 45
https://doi.org/10.47348/AYIH/2021/a1

Abstract

This article examines the Gukurahundi atrocities committed in Matabeleland in the 1980s to determine whether they constitute the international crime of genocide. This article analyses the legal requirements – conventions, jurisprudence and scholarly writings regarding genocide – and assesses the Gukurahundi atrocities against these requirements. The first section is the introduction, which highlights some known genocides in history and provides an outline of the article. The second section comprises an overview of the crime of genocide and its prosecution before the ad hoc tribunals, while the third section unpacks the notion of the four protected membership groups. The fourth and fifth sections evaluates the physical and mental elements of the crime of genocide with the aid of the jurisprudence of the ad hoc tribunals as well as the International Criminal Court. The sixth, seventh and eighth sections apply the legal requirements and jurisprudence to the Gukurahundi atrocities. The ninth section provides some concluding observations, arguing that the Fifth Brigade of the Zimbabwe National Army committed genocide from 1983 to 1987 as envisaged under international law. In each section, the Gukurahundi atrocities are evaluated against legal requirements: conventions, jurisprudence and the work of leading scholars.

Reparations without reparation: A critique of the Germany–Namibia Accord on colonial genocide

by | Nov 19, 2022 | AYIH, AYIH 2021

Reparations without reparation: A critique of the Germany–Namibia Accord on colonial genocide

Author: Catherine S. Namakula

ISSN: 2521-2621
Affiliations: LLB (Hons) Post Graduate Diploma in Legal Practice LLM PhD, Senior Lecturer at the University of the Free State, Professor of Human Rights and Criminal Justice with the Global Humanistic University, Curaçao
Source: African Yearbook on International Humanitarian Law, 2021, p. 46 – 66
https://doi.org/10.47348/AYIH/2021/a2

Abstract

Reparation is meant for effect: to make amends. The offer of EUR 1,100 million by the Federal Republic of Germany to the Republic of Namibia, in an agreement of June 2021, for the genocide committed during the colonial-era occupation encourages debate about the categorisation and effect of the payment in the fields of human rights and international criminal justice. The genocide was characterised by the loss of the lives of thousands of people among the Nama and Herero of Namibia between 1904 and 1908. In a pioneering analysis, this article reiterates the principles of reparation in international criminal jurisprudence as a yardstick for this significant gesture of remorse. Reparations must meet both procedural and substantive requirements: they must be proportional, appropriate, prompt and adequate, and they must culminate from a process that ensures the meaningful participation of victims and judicious regard for all relevant factors and circumstances. Reparations for the sake of it, without the remedial effect, make a mockery of justice. An agreement for development aid, however generous, cannot meet the standards of reparation for gross human rights violations. It does not oust the jurisdiction of a competent court on the matter and the pre-emptive clause intended to make the financial component in the Germany–Namibia Accord conclusive is unenforceable. This significant discourse must be guided by clearly set standards to avoid replicating the power dynamics which characterised the commission of the crimes that are intended to be addressed. Furthermore, the distinct treatment of victims on the basis of race and colonial history is repugnant and not defensible. A formidable institutional framework is needed for reparations for the trans-Atlantic trade and trafficking in enslaved Africans and colonial crimes, comprising a United Nations independent mechanism and a specialised committee of the African Union, supported by national committees of the respective countries.

The use of universal jurisdiction to ensure accountability for international crimes committed in Liberia in the periods 1989 to 1997 and 1999 to 2003

by | Nov 19, 2022 | AYIH, AYIH 2021

The use of universal jurisdiction to ensure accountability for international crimes committed in Liberia in the periods 1989 to 1997 and 1999 to 2003

Author: Shannon Bosch

ISSN: 2521-2621
Affiliations: BA (Hons) LLB LLM PhD, Attorney of the High Court of South Africa, Associate Professor of Law at University of Kwa-Zulu Natal
Source: African Yearbook on International Humanitarian Law, 2021, p. 67 – 92
https://doi.org/10.47348/AYIH/2021/a3

Abstract

This article investigates the potential for using the principle of universal jurisdiction to prescribe and then prosecute international crimes committed in Liberia during the two civil conflict periods: 1989 to 1997 and 1999 to 2003. More particularly, the article unpacks the concept of universal jurisdiction and explores the benefits that it offers in ending impunity for heinous international crimes. The article explores some of the controversies that have prevented the effective use of the principle of universal jurisdiction and highlights why it remains relevant, given the current response by the African Union to international prosecutions. The article highlights the reason why cases such as Kosiah and Massaquoi are especially significant in ending impunity in the case of Liberia, and how the success or failure of such cases can have a ripple effect, creating the necessary pressure for the establishment of an Extraordinary Criminal Court for Liberia on Liberian soil.

International humanitarian law in the African Commission’s General Comment No 3 on the Right to Life: A critical and comparative analysis

by | Nov 19, 2022 | AYIH, AYIH 2021

International humanitarian law in the African Commission’s General Comment No 3 on the Right to Life: A critical and comparative analysis

Author: Brian Sang YK

ISSN: 2521-2621
Affiliations: LLB LLM PhD MCIArb, Lecturer, Faculty of Law, Egerton University
Source: African Yearbook on International Humanitarian Law, 2021, p. 93 – 133
https://doi.org/10.47348/AYIH/2021/a4

Abstract

The African Commission on Human and Peoples’ Rights, which is the treaty body established to monitor the States Parties’ compliance with the African Charter on Human and Peoples’ Rights, adopted General Comment No 3 on the Right to Life in 2015. The African Commission’s General Comment No 3 provides authoritative normative guidance for interpreting and implementing the right to life under Article 4 of the African Charter in armed conflict situations. Specifically, it outlines the African Commission’s perspective on the right to life by elaborating on its scope and content, and also by clarifying the protections for individuals and the concomitant obligations of states. This article systematically discusses how and to what extent international humanitarian law (IHL) norms are integrated into the African Commission’s General Comment No 3, and what the likely effects of such integration are. Using a critical and comparative approach, this article analyses General Comment No 3’s interpretive approach to arbitrary deprivation of life in armed conflict; the constraints on lethal force during the conduct of hostilities; and states’ extraterritorial legal obligations. The article demonstrates that, although it is a creditable advance in elaborating the right to life during armed conflict and other situations of violence, General Comment No 3 leaves key aspects of the IHL–human rights law interface either laconically addressed or ineffectually articulated. Those aspects will have to be clarified in the African Commission’s future jurisprudence.

The silence of Africa in the international humanitarian law debate

by | Nov 19, 2022 | AYIH, AYIH 2021, Uncategorized

The silence of Africa in the international humanitarian law debate

Author: Kenneth Wyne Mutuma

ISSN: 2521-2621
Affiliations: BA Law LLM PhD, Senior Lecturer at the University of Nairobi
Source: African Yearbook on International Humanitarian Law, 2021, p. 134 – 149
https://doi.org/10.47348/AYIH/2021/a5

Abstract

International humanitarian law (IHL), as a component of international law, specifically seeks to limit the effects of warfare. The law of wars aims to limit suffering by regulating how war is fought. Despite the universal nature of most rules of IHL, Africa has been largely left behind, especially in the development of these laws and also in understanding and applying such laws on the continent. Notably, Africa has had its fair share of armed conflicts over the years, the effects of which have been devastating. However, there has been a disconnect between the development and the application of the rules of IHL in Africa. The history of Africa has led to the continent being disconnected from the development of IHL over the years. This article, therefore, aims to illustrate the gaps that exist in regard to Africa in the development of IHL as well as the exclusion of Africa’s concerns from the global IHL debate. The article considers why there is regional disengagement when it comes to IHL debates on the continent. This is done by first examining the reality of wars in Africa, which are similar to those that have occurred in other parts of the world. The article then considers the development of IHL as a body of international law that regulates armed conflicts and the gaps that exist in its application to and development in Africa. Finally, this article reflects on some of the ways of ensuring that Africa does not remain passive when engaging in the global IHL debate.

Uganda’s decision ‘In the Matter of an Arrest Warrant and the Surrender to the International Criminal Court (ICC) of Omar Hassan Ahmed al-Bashir’: Explanation, issues and consequences

by | Nov 19, 2022 | AYIH, AYIH 2021

Uganda’s decision ‘In the Matter of an Arrest Warrant and the Surrender to the International Criminal Court (ICC) of Omar Hassan Ahmed al-Bashir’: Explanation, issues and consequences

Author: Kasaija Phillip Apuuli

ISSN: 2521-2621
Affiliations: LLM, DPhil (University of Sussex); Associate Professor, Department of Political Science and Public Administration, Makerere University, Kampala, Uganda
Source: African Yearbook on International Humanitarian Law, 2021, p. 150 – 173
https://doi.org/10.47348/AYIH/2021/a6

Abstract

On 19 December 2019, High Court Justice Peter Adonyo issued a warrant of arrest for former Sudan President Omar al-Bashir should he ever set foot in Uganda or in a territory controlled by Uganda. He also held that by failing to arrest and surrender al-Bashir on two occasions in 2016 and 2017, in fulfilment of the warrants of arrest issued by the International Criminal Court (ICC) in 2009 and 2010, Uganda had breached its own International Criminal Court Act (2010), the Rome Statute (1998) and United Nations Security Council Resolution 1593 (2005). This contribution discusses the judgment by considering the context of Uganda’s failure to meet its legal obligations with regard to the ICC’s arrest warrants against al-Bashir. It then discusses the future of Uganda’s arrest warrant against al-Bashir, and the court’s clarification of the superiority of United Nations (UN) decisions over those of the African Union (AU).