THE ICC'S ROLE IN AFRICA

The newly constituted International Criminal Court is an important development in the fight against the most serious crimes of international concern. It will only be possible to look more closely at the role and impact of the court in the world, and Africa in particular, once it is explained how the court and its organs will function. In this regard the court's jurisdiction, the concept of complementarity and the role of the prosecutor are important. It would then be possible to see if the ICC could get involved in Africa, or whether it could be prevented from investigating and prosecuting such crimes. At the moment, it appears that the role of the ICC in Africa will be limited.     

AD HOC TRIBUNALS IN AFRICA

International judicial norms developed slowly during the Cold War but have recently begun to draw on the experiences of the Criminal Tribunal in the former Yugoslavia and Rwanda. These ad hoc bodies had to respond quickly to emergency situations by combining different international approaches to justice and prosecution. The Special Court for Sierra Leone is the latest of these experiments. Despite having had more time for reflective discussion and negotiation, the Special Court faces the same challenge and constraint: the parameters of time and resources are set by political imperatives. The International Criminal Court goes some way to addressing the problems of funding, good judicial appointments and contrasting legal systems, the details of future trials will not be easy. Ad hoc tribunals will probably still have a role to play in cases where the ICC cannot intervene.     

THE CREATION OF THE ICC

The implications for African states of the recently created International Criminal Court should be carefully considered. There are far-reaching limitations placed on the ICC's jurisdictional scheme, both temporally as well as by the preconditions to the exercise of jurisdiction in the form of territoriality and nationality. The Court's powers may also be constrained out of deference to the grant of an internationally acceptable amnesty, and national courts may be constrained to recognise immunities from prosecution for high-ranking officials. These limitations need to be properly understood so that the ICC can be effectively utilised by African States to declare and act upon their commitment to the principle of individual criminal liability for those responsible for the most serious crimes.     

Justice empowered or justice hampered: The International Criminal Court in Darfur

It came as a surprise to many international observers when, on 31 March 2005, the United Nations Security Council passed resolution 1593, which referred the situation in Darfur to the jurisdiction of the International Criminal Court. Some celebrated this event as initiating a new era in which international criminal justice would prevail, but they might have done well to consider the objections immediately raised by the representatives of the Sudanese government, which was not a party to the ICC, a point that created a series of impediments to the implementation of the resolution. For all that the ICC has been charged with investigating crimes against humanity in Darfur, its investigators are being prevented from seeking the evidence on the ground essential to any successful prosecution. The Sudanese government has so far maintained its obstructive position, arguing that it is capable of handling such cases within its own sovereign jurisdiction. The imperative of excluding the ICC from Darfur has contributed to Khartoum's objections to the deployment of a UN force to replace the African Union mission there. In sum: the challenges faced by the ICC in Darfur demonstrate that international criminal justice does not operate in a political vacuum.     

Political dynamics in Kenya’s post-electoral violence: Justice without peace or political compromise?

The political upheavals that erupted in Kenya after the release of the 2007–8 election results resulted in the death of approximately 1 200 people, as well as the loss of livestock and other valuable property. While the Kenyan government tried to seek solutions to the crisis, the International Criminal Court (ICC) issued warrants for the arrest of top government officials. For its part, the African Union (AU) accused the ICC of racism by targeting only African leaders, and maintained that such practices undermine the rule of equality before the law set forth in Article 27 of the Rome Statute. The AU is therefore advising African countries, including Kenya, to consider withdrawing from the ICC. Will the ICC's intervention into the situation in Kenya bring justice and peace to the country, or will it add to the existing injuries affecting not just the country but the region as well? Through a critical analysis of contemporary scholarly discourse, this article unravels the dilemma of the ICC's intervention and the likely consequences of this action for the people of Kenya and Africa.     

NON-GOVERNMENT ORGANISATIONS IN PEACEKEEPING OPERATIONS

“An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”     

INVESTIGATING THE RUBBLE OF SYRIA'S SECRET REACTOR

Damascus has severely impeded an investigation by the International Atomic Energy Agency (IAEA) into Syria's construction of a covert nuclear reactor, which was destroyed in a 2007 Israeli air strike. Pressing Damascus to cooperate with the inquiry is necessary to ascertain that there are no other undeclared activities in Syria, to determine the role of North Korea in the construction of the reactor, and to help prevent future clandestine efforts. With Damascus doing its best to avoid the investigation, securing Syrian cooperation will require adept diplomacy backed by the prospect of special inspections and, if necessary, a referral to the UN Security Council. The case of Syria's secret reactor highlights areas in which the IAEA needs buttressing, from the enhanced sharing of information, to reporting that is less political and more forthright. The case also illustrates the downside of politicizing IAEA investigations and supports the new director's apparent intent to return the agency to its core technical tasks.     

Africa's toy soldiers,non-state armed groups,and ‘voluntary’ recruitment

Armed conflict on the African continent has witnessed increasing recruitment of child soldiers, often at the hands of non-state armed groups. Unfortunately this practice continues unabated in the face of legal obligations prohibiting the recruitment of child soldiers under international humanitarian law, and international and regional human rights law. While international condemnation of the practice has led to attempts to increase the minimum age for recruitment to 18, a disjuncture persists between the legal obligations states sign up to, and the actual enforcement of these prohibitions at a domestic level.

International criminal law jurisprudence emanating from the Special Court for Sierra Leone and the International Criminal Court is being monitored closely, as these courts seek to enforce the prohibition in all armed conflicts, and against both state actors and non-state armed groups. International humanitarian law only protects child soldiers who have been unlawfully recruited. In this piece, the authors take a closer look at what amounts to unlawful recruitment in light of customary international humanitarian law, since this body of law also binds non-state actors, even without further criminalising legislation at a domestic level. Moreover, the article briefly explores whether a child can ever void this protected status by volunteering to participate directly in hostilities.     

The challenge and meaning of justice in northern Uganda

Even though the peace talks in northern Uganda have faltered, attempts at negotiations between the Ugandan government and the rebel Lord's Resistance Army are continuing. The current rapprochement between the two sides is the most significant move towards peace in the twenty-year civil war in northern Uganda. Even though the war has been extreme in its brutality, it is little known of outside the region—with reports on the conflict often portraying a protective government pitted against a crazed rebel group. But the issues are much more complex. The article examines the history of abuses and atrocities committed by both sides; the wider implications of the conflict for the north; why the rest of Uganda are seemingly disinterested in the conflict; and the politics behind why northern civil society have little trust in the Ugandan government or the International Criminal Court (ICC). The current prospect of peace has also stirred up the debate around justice and the forms of justice for victims of both rebel and government atrocities. And this is where the biggest cleft between the northern civil society and officialdom (government and international NGOs) resides. The article further examines the implications of the ICC's work in Uganda, and why there has been such widespread hostility towards it from northern civil society. The article also asks if—beyond the end of fighting and terror—peace will really mean that northern Uganda can finally partake in the prosperity the rest of the country has almost taken for granted.     

谈非法证据排除规则对边防毒品案件侦查工作的影响

2010年5月30日,最高人民法院、最高人民检察院、公安部、国家安全部、司法部联合发布的《关于办理刑事案件排除非法证据若干问题的规定》再次对非法证据的排除进行了明确的规定。基于此,对我国执行非法证据排除规则的现状,非法证据排除规则对边防毒品案件侦查工作的影响进行了探讨,并提出了相应对策。     

Explaining the (il)legality of Uganda's intervention in the current South Sudan conflict

During the night of 15 December 2013, fighting broke out between factions of the Sudan People's Liberation Army (SPLA) in Juba, the capital of the Republic of South Sudan. The fighting pitted forces loyal to President Salva Kiir against those loyal to former Vice President Riek Machar. Five days later, Uganda sent troops into South Sudan, advancing a number of reasons for intervention, including that it had been invited by the legitimate government of South Sudan to ensure order; it needed to evacuate Ugandan citizens caught up in the fighting; it had been asked by the United Nations Secretary-General to intervene; and that the regional organisation, the Intergovernmental Authority on Development had sanctioned the intervention. As the conflict escalated, Ugandan troops started fighting on the side of forces loyal to Kiir. The underlying reasons for the intervention were clearly economic, but those advanced were legal. This article discusses both sets of reasons and concludes that the economic reasons are more persuasive. Nevertheless, while some of the legal arguments (such as being invited by the legitimate government of South Sudan) can be asserted, others are clearly dubious. In addition, the participation of Ugandan troops in the fighting on the side of the Kiir government renders the intervention illegal.     

South Sudan and the pitfalls of power

For the people of South Sudan, the promise of independence is saddled with challenges similar to those witnessed by post-independence Africa in the late 1950s and early 1960s. Then, the euphoria was short lived as several African countries lapsed into a state of authoritarianism, corruption and instability. The question is, what went wrong and can South Sudan learn from Africa's past? This update observes that there are differences in context between South Sudan and post-independence Africa, but maintains that South Sudan faces similar dangers: independence could easily turn into disenchantment and come to haunt the leaders of Africa's newest state should they fail to take concrete measures to transform institutions to be accountable, inclusive and responsive to people's needs.     

Walking a tightrope: the International Criminal Court and conflict prevention in Africa

Many African countries gained political independence in the 1960s. This era of independence came with promises and great expectations of economic, political and social development. Fifty years later, it is certain that the promises and expectations of independence have not been easily realised. Perennial violent conflicts have continued to ravage many countries in Africa, causing the catastrophic breakdown of law and order. Therefore, one of the major issues in conflict resolution discourse in Africa is how to develop functional mechanisms for the prevention of violent conflicts. This article examines the capacity of the International Criminal Court (ICC) to act as a mechanism for conflict prevention in Africa. Notwithstanding the doubts and uncertainties associated with the impact of law on conflict transformation, this article argues in the main that the ICC contributes to conflict prevention in Africa by expressing global norms of international law, challenging the culture of impunity in some countries, contributing to general deterrence, speedily intervening in some violent conflicts, and contributing to building some records of atrocities by identifying who did what.     

COMPREHENSIVE NUCLEAR-TEST-BAN TREATY

President Barack Obama has pledged to secure the ratification of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), which was previously rejected by the U.S. Senate in 1999. This article attempts to predict the potential implications of Washington's ratification for the treaty's future by analyzing the positions and options of the eight other essential holdouts. The authors conclude that without the United States to hide behind, facing domestic and international constraints, and lacking substantial strategic reasons to remain outside the treaty, most holdouts will move toward ratification. Nonetheless, the process is likely to be time consuming, and several of the key actors remain unpredictable.     

Low-intensity conflict in Eastern Sudan: A comparative approach to the development of rebel groups

This article discusses the development of a low-intensity conflict in Sudan's eastern region between 1994 and 2006. Drawing on data collected in the region in 2009, recruitment processes within three different insurgent groups are analysed and compared, paying attention to the impact of these processes on insurgents' organisational development and military capacity. The peace process in Eastern Sudan is further discussed, focusing specifically on the disarmament, demobilisation, and reintegration (DDR) programmes for former insurgents. The article finally discusses current developments and draws conclusions regarding the risk of renewed rebellion in Eastern Sudan.     

Power and influence in post-secession South Sudan: A leadership perspective on nation-building

ABSTRACT

Following South Sudan's secession in 2011, the country faced significant political, social and economic challenges. The country emerged from a long andarduous nation-building journey, including almost 50 years of violent conflict, that would continue after declaring independence. This nation-building process would suffer a significant set-back in December 2013 when the most recent civil war broke out. This article provides a new perspective on South Sudan's nation-building trajectory that tends towards violence and complicates peace-building. It does so by utilising the leadership process approach from the Leadership Studies literature. While popular literature and commentary tends to fault the South Sudanese elite for the current crisis, there has not been a systematic effort to understand the leadership challenge and its role in conflict, peace and nation-building in South Sudan. In this article, South Sudan's nation-building process and its three primary components of (a) identity construction, (b) statehood and (c) collective will and responsibility, are analysed from a leadership perspective, focusing on issues of power and influence. The conclusion is reached that South Sudan's nation-building has been and will likely continue to trend towards a violent process due to a leadership process that lacks mutuality and is founded on insufficient sources of power.     

The Iranian nuclear dilemma: light at the end of the tunnel?

In February 2012, Iran announced its willingness to resume negotiations with the Western powers. This statement followed in the wake of a damning report by the International Atomic Energy Agency (IAEA) Board of Governors and the imposition of additional sanctions by the international community on an Iranian economy already under pressure. Tehran's announcement also coincided with increased speculation regarding an Israeli military strike on Iranian nuclear facilities. At the same time, however, this seemingly positive step appeared to be undermined by Iran's concomitant announcement that “huge” technical progress has been made on Iran's nuclear programme. This article will explore the significance of the recent political, diplomatic and technical developments in the Iranian nuclear affair and situate them in the broader context of Tehran's nuclear strategy. The analysis will assess the potential for this latest phase in the Iranian nuclear crisis to reverse Iran's current trajectory and initiate a rapprochement between Iran and Western powers.     

Outsourcing the prosecution of Somali pirates to Kenya

There has been a failure by the international community to establish an effective system of prosecution for the trial of captured Somali pirates. This failure is in part due to the inability of the United States and by developed countries in Europe to carry out their responsibility as prescribed under international laws dealing with the prosecution of captured pirates. Owing to domestic political pressures, it has become politically expedient to outsource the trial of captured Somali pirates to Kenya and other developing countries in the East African region. By the end of 2009, Kenya had signed six memoranda of understanding with Canada, China, Demark, the United Kingdom, the United States and the European Union. Kenya has become the single largest destination for the trial of captured Somali pirates whose victims are not Kenyans; the attacked vessels do not fly the Kenyan flag, the attacked ships are not managed by Kenyans and the crimes did not occur in Kenya's territorial waters. Outsourcing as constructed, conceived and implemented at present is morally and legally wrong. It has left a weak and poor country to shoulder the responsibility of the international community. This paper examines the reasons for outsourcing and its implications for Kenya.     

Early warning,the protection of civilians and United Nations peacekeeping operations

This commentary traces the increasing importance of early warning in United Nations (UN) peacekeeping, an emphasis that has emerged in connection with the evolution of protection of civilians mandates in UN peacekeeping missions. It examines the current and emerging practice of early warning in UN peacekeeping as well as the challenges faced, drawing on case studies from the UN missions in South Sudan and the Democratic Republic of the Congo. The authors also propose a set of basic principles upon which early warning in UN peacekeeping operations might be approached in the future.     

A Muslim by any other name

Abstract

A crisis is emerging in the Nile Basin, where some 300 million people in Egypt, Sudan, Ethiopia, Uganda, the Democratic Republic of Congo, Rwanda, Kenya, Tanzania and Burundi rely on the Nile directly or indirectly. Egypt and Sudan wish to preserve a regime based on treaties drawn up during the colonial era that allocated the vast majority of the Nile's water to them. Countries upstream are determined to challenge this. In 1999 the countries using the river formed the Nile Basin Initiative to try to resolve these differences. More than a decade of negotiations failed to break the impasse. In May Ethiopia, Kenya, Rwanda, Tanzania and Uganda decided to wait no longer and signed a new treaty, without the consent of Egypt and Sudan. The signatories have given the other Nile Basin countries one year to join the pact. For Egypt, which relies on the Nile for 95 per cent of its water, this is a question of life or death. Egypt has, in the past, indicated it will go to war if its share of the Nile is reduced. Talks continue, but the impasse is driving the region towards a crisis to which there is no easy resolution.