African Yearbook of International Humanitarian Law

vLex
Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
2521-2621

Description:

The African Yearbook on International Humanitarian Law (AYIHL) is an annual legal journal which aims to promote interest and research in International Humanitarian Law and Policy. The AYIHL provides an attractive and positive forum for publications on all aspects of International Humanitarian Law of relevance to Africa and African academics. Through its encouragement of interest and research in the area, the publication contributes to the prevention of violations of international humanitarian law.

Issue Number

Latest documents

  • Current Development: Buying its Way Out of History? The Shortcomings of the 2021 German-Namibian ‘Joint Declaration’

    The question of reparations to the descendants of the victims of the Herero genocide remains unresolved. This article analyses the 2021 agreement (‘Joint Declaration’) between Germany and Namibia, and highlights its shortcomings. This article divides the critique of the Joint Declaration into the following parts: the timing of the agreement; the exclusionary nature of the negotiations process; the staggered nature of the payments; the government’s refusal to call the payment reparations, calling it instead ‘development aid’; the paternalistic tone of the agreement, as well as the fact that the agreement was made as ‘full and final settlement’. These points of critique reflect the Herero’s main concerns with the agreement. It argues that the major defects in the Joint Declaration were not addressed sufficiently in the renegotiated agreement of 2024. The article further considers the ongoing political and legal fallout of the Joint Declaration, the litigation arising from it, and the reactions of the affected groups to the Declaration.

  • Evaluating Medico-Legal Jurisprudence of Félicien Kabuga's Unfitness to Stand Trial for the Rwandan Genocide: A Socio-Historical Context

    For turning fugitive from international criminal justice for over two decades, Félicien Kabuga's tainted reputation as 'the financier of the Rwandan genocide' lingers in popular discourse and public memory. This paper analyses the International Criminal Tribunal for Rwanda’s (ICTR) failure in bringing him to justice by not holding him responsible for atrocity crimes. In 2023, the United Nations Residual Mechanism for Criminal Tribunals terminated Kabuga's case. Paradoxically, not only was he denied an opportunity to clear his name, but also the victims remained frustrated. This paper places the case in a historical context through the 'machete thesis', which alleges that Kabuga’s company imported half a million machetes through Kenya for use in the planned genocide. Curiously, after two decades, the prosecution dropped that thesis in favour of direct eyewitness testimony alleging that he trained the Interahamwe militia inside his compound. However, midway through the trial, Kabuga suffered dementia. Hence, this paper explores the politics of recognition and Judge El-Baaj's insistence on the 'support-based approach' that emerges from the Convention on the Rights of Persons with Disabilities. The paper’s methodology involves interpreting conflicting judicial decisions in Kabuga's case to understand how medico-legal jurisprudence determined his unfitness to stand trial. Finally, an examination is made of alternative trial procedures and possible substantive corporate responsibility. Societal consequences are reminiscent of the National Military Tribunal's infamous acquittal of Alfried Krupp following World War II, despite his financing of Hitler’s Nazi Party. Arguably, the IRMCT’s legacy constitutes two failings. First, it violated Kabuga's fundamental rights. Second, it contributed to 'soft-core genocide denial', resulting from inflicting further suffering on the Tutsi and moderate Hutu victims. They were not only denied symbolic justice, but also received no compensation from Kabuga's frozen assets.

  • Sovereignty and Human Rights in Africa: Analysing Tanzania's Withdrawal from The African Court on Human and Peoples' Rights

    As regional human rights courts have become increasingly crucial in promoting and protecting human rights, a troubling trend has emerged: states withdrawing from these courts under the name of state sovereignty[fn1]. Such a phenomenon threatens to undermine the very fabric of regional human rights protection, leaving vulnerable individuals without a remedial mechanism to address violations of their fundamental rights. This paper undertakes a critical examination of the complex context surrounding Tanzania’s withdrawal from the African Court on Human and Peoples’ Rights, addressing its legality and potential legal repercussions. This paper does so by comparing the European and Inter-American human rights systems. This article aims to shed light on the darker side of state sovereignty and its impact on the protection of human rights. Through this in-depth analysis, this paper aims to uncover the root causes of state withdrawal from regional human rights courts and provide actionable recommendations for promoting and protecting human rights at the regional level. footnote 1: Rivero Del Rivero, J A D and Calcáneo Sánchez, A 'African human rights system in crisis? Causes and effects of the withdrawal of the declarations that allow individuals and NGOs to submit communications to the African court on human and peoples' rights' (2024) 9:27 Derecho Global. Estudios Sobre Derecho y Justicia 191–215.

  • Current Development: Regulatory Capture and Geopolitical Resistance: Analysing State Behaviour in UN Negotiations on Private Military and Security Company Oversight

    The Open-ended Intergovernmental Working Group (OEIGWG) on Private Military and Security Companies represents a critical juncture in international law, where regulatory failure has become institutionalised through systematic bad faith negotiation. Since 2017, the Working Group has produced four successive draft instruments, yet it remains deadlocked, not due to technical disagreement but due to calculated obstruction by powerful states protecting a US$240 billion industry. This article advances three interconnected arguments substantiated through track changes analysis of the Third Revised Draft (March 2024) and Fourth Revised Draft (March 2025): (1) state opposition correlates directly with national PMSC market dominance, with home states (USA, UK, China, South Africa, Turkey, Russia) controlling 70% of the global market systematically objecting to substantive accountability provisions; (2) the sophistication of obstructionist tactics, from definitional narrowing to jurisdictional fragmentation, reveals regulatory capture through documented revolving door dynamics between government officials and corporate interests; (3) the distinction between home states (where PMSCs are registered) and host states (where they operate) explains voting patterns, with host states predominantly in the Global South consistently championing binding frameworks while bearing the human cost of PMSC violations spanning Mali, Central African Republic, Mozambique and Sudan. Voluntary frameworks, including the Montreux Document and the International Code of Conduct Association, have systematically failed to prevent violations or ensure accountability. The evidence presented, comprising economic data correlating market share with negotiating positions, comparative analysis of state positions on analogous regulatory frameworks, documented PMSC violations enabled by accountability gaps, and academic consensus on state motivations, demonstrates that complexity and sovereignty concerns cannot explain the systematic pattern of Western obstruction spanning eight years. The choice before the international community is binary and urgent: binding regulation prioritising human rights over corporate profits, or continued accommodation of systematic violations. This article argues for the exposure of hidden agendas, alternative regulatory pathways through regional frameworks and domestic legislation with extraterritorial reach, and prioritisation of victim compensation over state protection of corporate interests.

  • Prelims

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  • 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.

  • 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.

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