Browsing by Author "Nkosi, Mfundo"

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    Inconsistency in the implementation of the responsibility to protect during humanitarian crises: the case of Libya and Sudan.
    (University of the Western Cape, 2014) Nkosi, Mfundo; Dube, A.; van der Poll, Letetia
    The aim of this mini-thesis is to examine the inconsistency in the implementation of the responsibility to protect (RTP) principle during armed conflicts with specific focus on the case of Libya and Darfur. Furthermore the mini-thesis scrutinizes the criteria which are utilized universally and questions whether the principle is determined by factors such as economics, politics and location depending on each crisis. The significance of this minithesis derives from the need to make a contribution to the new interventionism debate and contribute to the growing literature on the doctrine of the RTP especially when it comes to the inconsistencies during its application which seems to be on the rise especially in the African continent. The mini-thesis was guided by the following assumption that there are inconsistencies when it comes to the application of the RTP under humanitarian law. The mini-thesis also embarks on an enquiry into the legal aspects of the RTP doctrine and the legal status of humanitarian intervention. It is worth noting that the RTP doctrine does not concentrate on every human rights violation or abuse of power, even when these are very serious as in the case of Sudan. It certainly does not empower or establish an obligation on the international community to respond by over-riding the offending state’s sovereignty. The initial intention of the RTP was aimed at preventing mass attacks or large scale violations involving genocide, war crimes, ethnic cleansing and crimes against humanity. It is greatly disappointing to note that the international community at large tends to overlook the more severe crises which have more casualties and turn their eyes on less serious humanitarian crises. This raises concern about the extent of the inconsistency in the application of the RTP. The question that begs an answer therefore is why intervene in Libya and not Darfur? In conclusion to this mini-thesis I came to the realization that inconsistencies within the application of the RTP exist because humanitarian intervention under the RTP has a massive political element which affects implementation. The RTP is often used as a justification for states to act in conflicts when there is no domestic support for more direct political intervention. Thus, I believe that intervention can never be completely humanitarian driven until the five RTP precautionary principles are used as a guideline or criteria for interventions.
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    Inconsistency in the implementation of the responsibility to protect during humanitarian crises: the case of Libya and Sudan.
    (University of the Western Cape, 2014) Nkosi, Mfundo; Dube, A.; van der Poll, Letetia
    The aim of this mini-thesis is to examine the inconsistency in the implementation of the responsibility to protect (RTP) principle during armed conflicts with specific focus on the case of Libya and Darfur. Furthermore the mini-thesis scrutinizes the criteria which are utilized universally and questions whether the principle is determined by factors such as economics, politics and location depending on each crisis. The significance of this minithesis derives from the need to make a contribution to the new interventionism debate and contribute to the growing literature on the doctrine of the RTP especially when it comes to the inconsistencies during its application which seems to be on the rise especially in the African continent. The mini-thesis was guided by the following assumption that there are inconsistencies when it comes to the application of the RTP under humanitarian law. The mini-thesis also embarks on an enquiry into the legal aspects of the RTP doctrine and the legal status of humanitarian intervention. It is worth noting that the RTP doctrine does not concentrate on every human rights violation or abuse of power, even when these are very serious as in the case of Sudan. It certainly does not empower or establish an obligation on the international community to respond by over-riding the offending state’s sovereignty. The initial intention of the RTP was aimed at preventing mass attacks or large scale violations involving genocide, war crimes, ethnic cleansing and crimes against humanity. It is greatly disappointing to note that the international community at large tends to overlook the more severe crises which have more casualties and turn their eyes on less serious humanitarian crises. This raises concern about the extent of the inconsistency in the application of the RTP. The question that begs an answer therefore is why intervene in Libya and not Darfur? In conclusion to this mini-thesis I came to the realization that inconsistencies within the application of the RTP exist because humanitarian intervention under the RTP has a massive political element which affects implementation. The RTP is often used as a justification for states to act in conflicts when there is no domestic support for more direct political intervention. Thus, I believe that intervention can never be completely humanitarian driven until the five RTP precautionary principles are used as a guideline or criteria for interventions.
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    Prosecuting the three core crimes: Complementarity in light of Africa’s new international criminal Court.
    (University of Western Cape., 2019) Nkosi, Mfundo; Dube, Angelo
    The principle of complementarity forms the basis upon which the International Criminal Court (ICC) exercises its jurisdiction. This principle of international law first appears in the Preamble to the Rome Statute and then the admissibility provisions under Article 17 of the Rome Statute, which outline that the Court will declare a case inadmissible where it is being investigated or prosecuted by a state which has jurisdiction over it; unless the state is unwilling or unable to genuinely carry out the investigation or prosecution. Alternatively where the case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the state to genuinely prosecute. This principle implies that the ICC is a court of last resort and will therefore not intervene in a case where the state of commission is either able or willing genuinely to investigate and prosecute perpetrators of grave crimes. It is common cause that Africa has been the staging area of mass atrocities for decades. The indictment of Kenyan president Uhuru Kenyatta’s’ and his deputy William Ruto, Hissene Habre case, and the indictment and issuance of an arrest warrant against the Sudanese President Omar El-Bashir are instructive in this regard. The ICC’S actions created the perception of bias, injustice and inequity. This prompted a sharp reaction from African states, which threated a mass withdrawal from the Rome Statute in 2013. The one positive spin off from the AU reaction was the expansion of the jurisdiction of the merged court to include a criminal chamber in 2014, thus creating Africa’s first international criminal court, the African Criminal Court (ACC). This development was the result of the discontent and frustration of the African continent towards the work of the ICC, which was perceived as focusing only on African cases, whilst ignoring the litany of cases coming from other regions of the world.