Persuasive Prevention: Ending Mass Atrocities in Africa

by | Oct 1, 2019 | AYIH, AYIH 2016

Persuasive Prevention: Ending Mass Atrocities in Africa

Authors Dan Kuwali

ISSN: 2521-2621
Affiliations: Extraordinary Professor of International Law, Centre for Human Rights, University of Pretoria, Distinguished Professor of International Law and International Relations, University of Lilongwe, Malawi, and Fellow, Carr Centre for Human Rights Policy, Harvard Kennedy School of Government
Source: African Yearbook on International Humanitarian Law, 2016, p. 108 – 136

Abstract

Africa is a continent which has experienced some of the world’s worst mass atrocities. Notwithstanding the provision of the right to intervene in a member state in the face of war crimes, genocide and crimes against humanity under Article 4(h) of the Constitutive Act of the African Union and construction of an ambitious continental human rights protection architecture, Africa is still a continent riddled with conflicts where mass atrocities have flourished. This paper advances a concept of ‘persuasive prevention’— a graduated approach to secure respect for human rights and humanitarian norms as well as conflict prevention strategies through constructive engagement by civil society and the international community with potential perpetrators, backed by credible multilateral enforcement mechanisms. The aim of the Article 4(h) intervention should, first and foremost, be to prevent mass atrocities from occurring and, where mass atrocities are occurring; intervention should be aimed at protecting the populations at risk and the pursuit of perpetrators.

Many Small Wars: The Classification of Armed Conflicts in the Non-Self-Governing Territory of Western Sahara (Spanish Sahara) in 1974-1976

by | Oct 1, 2019 | AYIH, AYIH 2016

Many Small Wars: The Classification of Armed Conflicts in the Non-Self-Governing Territory of Western Sahara (Spanish Sahara) in 1974-1976

Authors Ben Saul

ISSN: 2521-2621
Affiliations: Challis Chair of International Law, Sydney Law School, University of Sydney, Australia
Source: African Yearbook on International Humanitarian Law, 2016, p. 85 – 107

Abstract

Much has been written about the various international legal aspects of the Western Sahara dispute, yet there has been little attention to the legal classification of the violence which engulfed the then Spanish Sahara in 1974-1976. This article closely examines the historical record in order to identify how international humanitarian law applied leading up to and during the Spanish withdrawal and the attainment of control by Morocco and Mauritania. In particular, it finds that there existed a series of five consecutive and/or parallel conflicts of different legal characters, including three non-international armed conflicts (involving Polisario against Spain, Morocco and Mauritania respectively) and two international armed conflicts (between Spain and Morocco, and Morocco and Algeria). (The non-international conflict between Morocco and Polisario was also transformed into an international (self-determination) conflict as a result of the application of Additional Protocol I of 1977 in 2011.) The legal classification of the hostilities is not merely of historical interest, but has continuing consequences for the legal responsibility of states, and the criminal liability of individuals, for violations of international humanitarian law in each of the conflicts. Accountability is likely to be an important aspect of a comprehensive peace settlement and post-conflict justice.

The Innocent Civilian, the Mandated Soldier and the Unlawful Fighter: A Re-Evaluation of the ‘Direct Participation in Hostilities’ Dilemma

by | Oct 1, 2019 | AYIH, AYIH 2016

The Innocent Civilian, the Mandated Soldier and the Unlawful Fighter: A Re-Evaluation of the ‘Direct Participation in Hostilities’ Dilemma

Authors Arthur van Coller

ISSN: 2521-2621
Affiliations: Associate Professor, Nelson R Mandela School of Law, University of Fort Hare
Source: African Yearbook on International Humanitarian Law, 2016, p. 65 – 84

Abstract

The Law of Armed Conflict (‘the LOAC’) incorporates terms and concepts that, on initial scrutiny, appear uncomplicated. However, the meaning and practical application of several concepts within the LOAC have often proven to be highly ambiguous and contested. The notion of ‘Civilian Direct Participation in Hostilities’ (‘C-DPH’), found, arguably, in Common Article 3 of the Geneva Conventions of 1949 and explicitly in Additional Protocol I of 1977, Article 51(3), and Additional Protocol II of 1977, Article 13(3), represents one such contested concept. C-DPH is a cornerstone concept in the LOAC and has attained the status of customary international law. On a conceptual level, civilians should be protected from intentional attack unless, and ‘for such time’, as they ‘directly participate in hostilities’. However, no definition of C-DPH or an indication of the actions that amount to C-DPH exist in the Geneva Conventions or in the Additional Protocols, despite the serious practical and legal consequences that may result from such participation. It is therefore imperative to establish a universal, comprehensive and practical definition of C-DPH.

Voluntary Human Shields in International Humanitarian Law: A Proposal for Suitable Future Regulation

by | Oct 1, 2019 | AYIH, AYIH 2016

Voluntary Human Shields in International Humanitarian Law: A Proposal for Suitable Future Regulation

Authors Marco Nel, Shannon Bosch

ISSN: 2521-2621
Affiliations: None; Attorney of the High Court of South Africa, Associate Professor in Law University of KwaZulu-Natal
Source: African Yearbook on International Humanitarian Law, 2016, p. 46 – 64

Abstract

The growing prevalence of voluntary human shields in recent asymmetric armed conflicts has exposed a significant lacuna in the existing international humanitarian law regime, which requires urgent regulation. In this article, we explore some of the challenges that any attempt at regulation must address, including assessing voluntariness and issues of capacity, limitations against direct participation in hostilities, the prohibition against shielding legitimate military targets, state responsibility, uniformity and concordance with existing international humanitarian law, and limiting targeting decisions motivated by reciprocity. We conclude with a proposal for the form and content of future regulation.

The Problem of Civil Contractors that Directly Participate in Hostilities

by | Oct 1, 2019 | AYIH, AYIH 2016

The Problem of Civil Contractors that Directly Participate in Hostilities

Authors Wyne Ken Mutuma

ISSN: 2521-2621
Affiliations: Lecturer (University of Nairobi), Advocate of the High Court of Kenya, Certified Public Secretary (Institute of Certified Public Secretaries, Kenya)
Source: African Yearbook on International Humanitarian Law, 2016, p. 8 – 45

Abstract

The past two decades have witnessed the emergence and rapid growth of private military and security contractors (PMSCs). Today these corporate entities make up a global security industry whose value is over US$100 billion. Their rapid rise has sparked enormous interest regarding the nature of the services they carry out on the battlefield — including services that constitute direct participation in hostilities — and whether the present legal regime governing armed conflict foresees, and adequately caters for, this peculiarity. International humanitarian law classifies all actors operating in armed conflicts as either combatants or civilians, conferring rights and obligations upon them on the basis of where it is that they fall in this divide. This article is of the view that the majority of PMSC personnel will be considered as civilians, a contradiction in view of the reality of their activities, and proceeds to highlight the potential consequences and challenges that arise from their present classification.