African Yearbook of International Humanitarian Law

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

  • 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.

  • The only true fragmentation in international law: Jus ad bellum and jus in bello
  • An analysis of policy-oriented jurisprudence at the International Criminal Tribunal for the former Yugoslavia (ICTY): A lemniscate of natural law, legal positivism and two liberalisms?

    Policy-oriented jurisprudence was used to substantively support certain arguments rendered by the International Criminal Tribunal for the former Yugoslavia (ICTY) in two cases, namely those against Dražen Erdemović and Pavle Strugar. Based on its limited use, the policy-oriented approach was clearly not a popular source of justification for arguments at the ICTY. However, its inclusion in structures of argument reveals at least some support for it. In the process of suggesting possible reasons why this particular theoretical approach was utilised in the justification of argument, this article aims to briefly discuss the broader philosophical tensions visible in the reliance on policy-oriented jurisprudence at the ICTY, viz, natural law/legal positivism, on the one hand, and the 'two liberalisms', identified by Darryl Robinson as inherent to international criminal law (ICL), on the other hand. Given that policy-oriented jurisprudence's inclusion in ICL judgments makes its future invocation in ICL literature and judgments possible, the purpose of delving into the broader theoretical paradigms involved is important for the emergence of a coherent jurisprudence.

  • The International Criminal Court and immunity: South Africa’s legal obligations
  • Resolving presidential term limits in transitional justice processes: Revisiting the 2015 Burundi Crisis

    The efforts to resolve the conflict in Burundi through the implementation of transitional justice have been fraught with many challenges. The crisis in Burundi took a new twist in June 2020 with the sudden passing of one of the major role-players, President Pierre Nkurunziza. However, this has not resolved the crisis in any significant way so far, and it is imperative to revisit and examine some of the underlying legal issues and draw some lessons for the future. In this article, I argue that the Burundi crisis, arising from the third-term bid of then President Nkurunziza, presented a conflict of two legal orders—the domestic constitutional order of Burundi and the African Union legal order as embodied in a number of regional treaties, principally, the African Union Constitutive Act and the Charter on Democracy and Governance. This clash made it difficult, if not impossible, to achieve a different outcome when expectations came in direct conflict with decisions of the highest court in the Burundian legal order. External actors should be more circumspect and approach election-related legal processes more cautiously, because, ultimately, it is the domestic courts that will decide such cases.

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