ISSN: 2521-2621
Affiliations: Lecturer in Law, Faculty of Law, North-West University; Kesolofetse
Source: African Yearbook on International Humanitarian Law, 2015, p. 68 – 86
None
ISSN: 2521-2621
Affiliations: Senior lecturer, Nelson R Mandela School of Law, University of Fort Hare
Source: African Yearbook on International Humanitarian Law, 2015, p. 44 – 67
None
ISSN: 2521-2621
Affiliations: Lecturer, Department of Constitutional Law and Philosophy of Law, University of the Free State
Source: African Yearbook on International Humanitarian Law, 2015, p. 1 – 43
None
ISSN: 2521-2621
Affiliations: State Advocate, Director of Public Prosecutions, Cape Town
Source: African Yearbook on International Humanitarian Law, 2015, p. 118 – 144
On 16 June 2015 Omar al-Bashir (Bashir), president of Sudan, safely left South Africa amid public outcries and despite a High Court warrant for his arrest. Rumours are rife that government was secretly facilitating his escape while assuring the court of his presence in South Africa. Intense debate has ensued about government’s apparent slighting of the courts and the Constitution. Building on this debate, this article aims to provide some perspective by focusing more on the international criminal law aspects involved and specifically on a contentious principle known as universal jurisdiction. Initiated by the Bashir incident, this article aims to consider the South African Government’s handling of the Bashir incident by providing a broader philosophical understanding of universal jurisdiction, its development and current application in international law. This incident emphasized the schizophrenic behaviour of South Africa’s leaders who say one thing and do something else and try their hardest to sidestep their own laws. That they chose the grandest possible stage to do this on is both unfortunate and embarrassing. The article argues that other future situations will not be so clear cut (ie, with Security Council sanction and backing) and before there is widespread public panic over government’s blatant disregard of the courts and the Constitution the intricacies of international law and politics should be kept in mind. The lack of precedent for universal jurisdiction as well as the cautious way other states deal with it should convince us that it is a complex concept guaranteed to cause a clash between courts and government. Universal jurisdiction based, as it currently is, on the fleeting presence of an offender in South Africa creates more problems than it solves and should perhaps be amended to require a stronger link (such as a measure of permanent residence) in line with the majority approach followed by states internationally.
ISSN: 2521-2621
Affiliations: Associate Professor of Law, Faculty of Law, University of the Western Cape
Source: African Yearbook on International Humanitarian Law, 2015, p. 96 – 117
There are two broad exceptions to the general rule that South African courts do not have jurisdiction over offences committed outside South Africa. The first set of exceptions developed by South African courts deals with offences of treason and theft. The second set of exceptions was created by the legislature and includes national and international offences. The prosecution of international offences is based on the principle of universal jurisdiction. This article examines the relevant statutory provisions relating to the offences of torture, terrorism, grave breaches of the Geneva Conventions, war crimes, crimes against humanity and genocide. It will recommend that there is a need for the relevant legislation to be amended to eliminate the ambiguities that relate to the following issues: the place where the suspect has been arrested or found; courts with jurisdiction over the offence and the individual responsible for authorising the prosecution of the offence and designation of the court; the expiry of the right to prosecute; and the prosecution of acts or omissions which took place before the commencement of the Acts.
ISSN: 2521-2621
Affiliations: Attorney of the High Court of South Africa; Senior Lecturer in Law, University of KwaZulu-Natal
Source: African Yearbook on International Humanitarian Law, 2015, p. 79 – 95
The term ‘unlawful enemy combatant’ was initially coined in a 1942 US Supreme Court decision, as shorthand referring to persons captured while participating in armed conflict without the required authorisation. The notion that a combatant (who by definition is someone authorised to participate directly in hostilities) can be simultaneously unlawful raises complex legal questions. Not surprisingly, the category ‘unlawful enemy combatant’ does not appear in any of the international humanitarian law (IHL) treaties. It is therefore alarming that, since its reincarnation under the Bush administration, it has crept into legal literature, military manuals and case law but has yet to be defined by international agreement. Over the last century and a half, armed conflicts have played out in predominantly civilian locations, giving rise to greater intermingling of civilians with combatants. While previously unauthorised participation in conflict was seen as exceptional, in recent years it has become far more prevalent, to the extent that this increased civilian participation in armed conflicts is appreciably one of the greatest challenges faced by the armed forces. The IHL principle of distinction between lawful combatants and civilians was, and still is, intended to assist commanding officers in making legally defensible targeting decisions. However, the reality is that these supposedly clear-cut categories cannot provide clear-cut answers in modern international armed conflicts that are regulated by conventions which never envisaged the degree of civilian involvement in modern armed conflict. This legal confusion has given rise to misguided ideas — that civilian status can be forfeited or lost, and has fuelled the use of terms such as ‘unlawful enemy combatant’, an issue that is critically explored in this contribution.