Your World of Legal Intelligence
 South Africa | 1-929-605-4013

Books and Journals

Sources in this library

Category

Publisher

Latest documents

  • Claiming Genocide to Justify Aggressive Wars: The Case of Russia's Invasion of Ukraine and Rwanda's Expansionism in the Great Lakes Region

    In February 2022 the Russian Federation launched special military operations in Ukraine, alleging that the latter was committing genocide against the Russian-speaking population in the Donetsk and Luhansk regions, also known as 'the Donbas'. This led Ukraine to file an application instituting proceedings against the Federation at the International Court of Justice for provisional measures to suspend such operations. It also denied Russia's accusations of genocide. In the 1990s, Rwandan exiled Tutsis launched an attack to recapture power in their country, resulting in genocide. After lengthy court proceedings, the International Criminal Tribunal for Rwanda determined that genocide had been committed against the Rwandan Tutsis. Thereafter, and despite the Tribunal's thought-through decisions and judgments, Rwanda's President Kagame undertook a deceptive campaign, warning of impending genocide in Burundi in 2015, prompting the African Union to decide to deploy troops to prevent such atrocities. Burundi denied any threat of genocide. Also, since 1996, Rwanda has, on numerous occasions, intervened militarily in the Democratic Republic of Congo to, allegedly, prevent genocide against the Banyamulenge, also of Tutsi ethnicity. While international judicial institutions have laboured to ascertain the elements that constitute genocide, irresponsible claims of genocide continue to capture attention. Based on the relevant literature that addresses this burning issue, and some decisions and judgments of the United Nations ad hoc tribunals for Rwanda and the Former Yugoslavia, as well as those of the Extraordinary Chamber in the Courts of Cambodia, this article looks beyond the claim of genocide in the ongoing armed conflicts in the Great Lakes region and between Ukraine and the Russian Federation. The reality is that this claim is made by political leaders in a bid to serve their political agendas, despite legal efforts to clarify the legal requirements for a crime to be characterised as genocide. The article recommends the adoption of a supplementary convention that would reemphasise the requirements that any claims of genocide must meet to prevent its abuse and misuse, including in political discourses.

  • Safeguarding Peace: The Intergovernmental Authority On Development’s Role in Averting Atrocities in the South Sudan Conflict

    The Intergovernmental Authority on Development (IGAD), established in 1986, has a mandate to promote peace, security and development in the Horn of Africa. This article seeks to critically analyse IGAD's role in preventing genocide during the South Sudan conflict. By examining the key interventions, challenges and outcomes of IGAD’s mediation efforts, this article will explore the effectiveness of regional diplomacy in conflict prevention. The paper will also assess the limitations of IGAD's approach and propose recommendations for strengthening its role in future peace processes. The analysis will focus on the period from 2013, when the conflict began, to the present, with a particular emphasis on the Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) signed in 2018. In doing so, this article aims to contribute to the broader discourse on conflict resolution and genocide prevention in Africa, providing insights that can inform both regional and international policymaking.

  • Bridging Past, Present and Future: The impact of Rwanda’s Constitutional Reform on Transitional Justice and Genocide Prevention

    Following the 1994 genocide against the Tutsi, Rwanda embarked on a transitional justice journey, with reconciliation, non-recurrence and memorialisation at the heart of the agenda. One of the key legal changes in the subsequent years was the promulgation of the Constitution of the Republic of Rwanda 2003. Given that constitutions serve as the supreme law of a nation, the specific language and substance wield the potential to shape a nation’s trajectory by prescribing the principles and values that underpin governance and everyday life. Drawing upon the symbolic weight of constitutional frameworks, this article explores how the Constitution of Rwanda 2003 embodies the imperative of ‘never again’, by denouncing the ideology that prevailed leading up to and during the 1994 genocide, signalling a new ideology conducive to reconciliation and entrenching principles of transitional justice in its provisions. This article seeks to illustrate how reconciliation, non-recurrence and institutional reform—all which are central to transitional justice mechanisms—are entrenched in the Constitution and how this plays out on both governance and societal levels. Using Rwanda as a case study, this article explores the transformative potential of constitutions as transitional justice and genocide prevention tools. Importantly, it asserts that the more explicitly a constitution signals a new ideology and addresses a nation’s past legacy of genocide or conflict, the higher the prospects of it serving as a transformative transitional justice and genocide prevention tool.

  • Accountability for Aiding and Abetting the Rwandan Genocide: The obligation on South Africa to Investigate and Prosecute Willem 'Ters' Ehlers

    Genocide is often prosecuted at the level of direct perpetrators, yet those who facilitate or enable mass atrocity—such as private arms dealers—remain largely unaccountable. This article investigates the case of Willem Petrus Jacobus ‘Ters’ Ehlers, a South African arms broker who supplied weapons to the Forces Armées Rwandaises during the final months of the 1994 Rwandan genocide, in violation of United Nations Security Council Resolution 918. Using a doctrinal and case-study methodology, this article maps the evolution of the aiding and abetting doctrine in international criminal law—from Nuremberg to the International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and the Rome Statute—and applies its elements of actus reus and mens rea to Ehlers's conduct. The analysis demonstrates that Ehlers provided substantial assistance by negotiating arms deals in the Seychelles, arranging logistics and air charters, and facilitating payments from Rwandan government agents — all actions that materially contributed to the perpetration of genocide. Drawing on evidence from the UN International Commission of Inquiry, tribunal judgments, and domestic sources, the article argues that Ehlers’s conduct satisfies the requisite knowledge and substantial impact tests for aiding and abetting liability. Turning to South Africa's obligations, the article examines constitutional provisions (ss 231—232), the International Criminal Court Act and Constitutional Court jurisprudence, concluding that under customary international law and domestic statutes, South Africa has a binding duty to investigate and prosecute its nationals who enable genocide. It further dispels any statute-of-limitations barrier for crimes jus cogens . By spotlighting a singular actor, this study underscores the critical need for states to hold private enablers of atrocity accountable. It calls on South African authorities to fulfil their erga omnes obligations, thereby strengthening international criminal justice, deterring future genocides and affirming the rule of law.

  • A Case Study of the Use of the Word 'Genocide' as a Campaigning and Advocacy Tool by the Congolese Action Youth Platform

    This article critically examines the strategic use of the word ‘genocide’ by the Congolese Action Youth Platform (CAYP) as a powerful tool for campaigning and advocacy, rather than engaging in the debate over whether an actual genocide,within the current legal narrative, is, indeed, occurring in he eastern Democratic Republic of Congo (DRC). The study begins by exposing the international community’s indifference to the atrocities in the eastern DRC, underscored by the ineffectiveness of the United Nations Organisation Stabilisation Mission in the emocratic Republic of the Congo (MONUSCO), the International Criminal Court (ICC), the failure to establish an International Criminal Tribunal for Congo and the bias in international media coverage. The article then explores what CAYP is and how it has deliberately employed the word ‘genocide’ to draw global attention to the plight of the eastern DRC. This analysis further explores the theoretical and practical consequences of employing such a charged term within international criminal justice. Drawing on Ngũgĩ wa Thiong’o’s concept of the ‘politics of language’ and Mahmood Mamdani’s ‘politics of naming’, the article examines how language and naming can function either as tools of resistance against or as instruments of protection for the international criminal justicesystem. Finally, the article incorporates Balakrishnan Rajagopal’s perspective of legitimating narratives.

  • Developments in the Prevention and Punishment of Genocide after Rwanda: Actors, Approaches and Challenges

    In May 2024, the African Centre for Transnational Criminal Justice hosted a conference to commemorate the 30th anniversary of the genocide against the Tutsis in Rwanda and the legal developments that have occurred since then. In line with the theme of the conference, ‘Genocides as Critical Junctures: in Search of an African Vision of International Criminal Justice’, 35 conference participants presented their papers on the different thematic areas. This introductory article provides an overview of the papers that were selected for publication in this issue of the African Yearbook on International Humanitarian Law (AYIHL). The article begins with a brief background of the history of genocide in colonial Africa, from the Herero and Nama genocide committed by Germany between 1904 and 1908 to the genocide against the Tutsis in Rwanda in 1994. It then outlines the issues addressed in the selected papers in this issue of AYIHL, such as the definition and interpretation of the term ‘genocide’, accountability for aiding and abetting the crime of genocide, and the role of transitional justice mechanisms as genocide prevention tools. The article concludes that the issues addressed call into question the commitment by various role players, including the regional economic communities and regional organisations, such as the African Union, to prevent and punish genocide.

  • Association of Meat Importers and Exporters v International Trade Administration Commission (9233/2022) [2023] ZAGPPHC 1790 (12 October 2023)

    The High Court had occasion to establish the decision-making process in respect of the imposition of tariffs in South Africa under section 48(1)(b) of the Customs and Excise Act 91 of 1964 (CEA) in South Africa Sugar Association v the Minister of Trade and Industry [2017] 4 All SA 555 (GP) (30 August 2017) (hereafter, SASA) and Pioneer Foods (Pty) Ltd v Minister of Finance (15797/17) [2017] ZAWCHC 110 (29 September 2017) (hereafter, Pioneer Foods). In particular, the decisions in Pioneer Foods and SASA explained the scope of the powers of the Minister of Trade, Industry and Competition (Minister of Trade) and the Minister of Finance in respect of the amendment of Schedule 1 to the CEA to impose a tariff. Tariffs or duties are taxes on products imposed at the border. The High Court in both Pioneer Foods and SASA rejected the argument that the Minister of Finance merely “rubberstamps” the decision of the Minister of Trade to impose tariffs on a product (SASA para 37; Pioneer Foods para 30). Thus, both courts conclusively held that the final decision maker in respect of the imposition of tariffs is the Minister of Finance. This is because the High Court saw section 48(1)(b) of the CEA as employing directory language that conferred a discretion on the Minister of Finance upon receipt of the “request” of the Minister of Trade to impose a tariff. These decisions have been criticized as incorrect in law since they essentially arrogate the power to make trade policy from the Minister of Trade to the Minister of Finance (Vinti “The scope of the powers of the Minister of Finance in terms of section 48(1)(b) of the Customs and Excise Act 91 of 1964: An appraisal of recent developments in Case Law” 2018 Potchefstroom Electronic Law Journal 1-25). The High Court also remarked that it saw the same approach applying to the imposition of the trade remedies of dumping, safeguards and countervailing measures under Chapter VI of the CEA (SASA para 39). ' The High Court decisions also affirmed that the three decision makers for the imposition of trade remedies as being the International Trade Administration Commission (ITAC), the trade investigative body in South Africa established under section 7 of the International Trade Administration Act 71 of 2002 (ITAA), the Minister of Trade as conferred by section 4 of the Board on Tariffs and Trade Act 107 of 1986 (BTTA) and the Minister of Finance as bestowed by section 48(1)(b) of the CEA (SASA paras 33-34; Pioneer Foods paras 30-31).

  • Using Margaret Archer's sociological concepts of structure, culture, and agency to investigate the dissemination of customary marriage literature in South African Higher Education Institutions

    Before colonialism, apartheid, and democracy, customary marriages were regulated by customs and practices under living customary law. The advent of these systems introduced official customary law. This introduction brought about changes to customary marriages, which are known and understood by the people of South Africa who subscribe to living customary law. The existence of official customary law as a result of actions from colonialism, apartheid, and democracy impacted the literature of customary marriages that is disseminated by South African Higher Education Institutions (HEIs). These institutions disseminate customary marriage literature that often fails to capture the lived realities of African South African people. This led to the subjugation and marginalisation of the literature of customary marriages as practised by most South African people under living customary law. Unavoidably, the status quo concerns epistemological access to customary marriage literature based on living customary law. Against this backdrop, this paper adopts a multidisciplinary approach to investigate what led to the status quo and how the status quo could be changed. This will be done using Margaret Archer's sociological concepts of structure, culture, and agency, typically known as Margaret Archer's Morphogenesis Theory. In this contribution, this theory mainly denotes the relationship between the systems and interactions through systemic conditioning.

  • Appraising the regulatory framework for insider trading in mergers and acquisitions in South Africa

    The prevalence of mergers and acquisitions (M&A) leads to increased insider trading. This negatively affects companies' chances of generating more capital and the liquidity of financial markets, thereby affecting the country's economy due to a lack of investor confidence. Insider trading activity is more likely in M&A because it involves many insiders from the target and acquiring companies. According to the Financial Markets Act, the term “insider” would encompass officers, executives, board members, shareholders or employees directly involved in M&A, and persons such as negotiators who come into possession of the information intentionally or unintentionally during their duties. Inside information is sometimes leaked by financial and legal advisors, investment bankers, and business consultants who are retained by one of the parties to the transaction to assist in due diligence and complex negotiations. South Africa is one of the leading economies in the emerging financial markets. Therefore, effective regulation of insider trading in South Africa will promote stable and reliable economic growth through investment. This article addresses the following: (a) Is South Africa's current legislative and regulatory framework adequate to curb the problem of insider trading in M&A? (b) Are there any identifiable strengths and weaknesses in the legislation of insider trading in M&A in South Africa? (c) Is there a need to enact laws specifically dealing with insider trading in mergers and acquisitions? (d) Are there any useful lessons South Africa can learn from the approach adopted in the United States? (e) To the extent that the South African regulatory framework on insider trading is inadequate, how can South Africa enhance its legal framework in combating insider trading in mergers and acquisitions? Ndadza Beneficiaries of Mergers and Acquisitions in South Africa (Master of Management in Finance and Investment dissertation 2014 University of Witwatersrand) 13. As above.

  • The Evolution of the Right to Fair Procedure in Dismissals for Misconduct

    The obligation to follow a fair procedure before dismissing an employee for misconduct, certainly in the private sector, has its origins in the concept of the unfair labour practice, introduced in 1979 by way of an amendment to the Labour Relations Act 28 of 1956. This article traces the history of the development of a right to fair procedure before a decision to dismiss, and attempts to identify the normative basis of and justifications for that right. These included international standards, comparative law, the principles of administrative law applicable to public sector employees, and employer best practice. By 1994, a 'criminal justice' model had evolved, in which pre-dismissal procedures were equated with procedures applied in a criminal court. The Labour Relations Act 66 of 1995 (in particular, the Code of Good Practice: Dismissal) attempted to reduce the cost of elaborate workplace procedures. The legislative package introduced a system of compulsory arbitration for disputed dismissals, with a primary remedy of reinstatement for dismissals found to be substantively unfair, and compensatory awards for dismissals found to be substantively fair, but procedurally unfair. This approach reflects both respect for the autonomy and dignity of the employee, and a justification based on maximising the general welfare. The general welfare is maximised by accommodating the diversity and flexibility of procedural standards, promoting rational decision-making in disciplinary matters, and eliminating the cost of duplicated processes. The Code thus ultimately seeks to combine the normative ideals of worker protection with the achievement of productive efficiency.