Jeremy Sarkin

THE TENSION BETWEEN JUSTICE AND RECONCILIATION IN RWANDA: POLITICS, HUMAN RIGHTS, DUE PROCESS AND THE ROLE OF THE GACACA COURTS IN DEALING WITH THE GENOCIDE

Rwanda, since the genocide of 1994, has had immense difficulty in dealing with the past. It has pursued the model of prosecutions without being able to bring many of the alleged perpetrators before the courts. The article examines why this is so, as well as the political situation in Rwanda in the context of the countrys human rights record, to determine whether sufficient weight is being given to truth, reconciliation, peace and stability. The proposed new gacaca community courts are examined to determine whether the stated government intention of using these structures to deal with genocide cases outweighs the potential problems they may cause. The article suggests that as so many years have elapsed since the genocide of 1994 that the authorities cannot, and should not, seek to prosecute all those accused of participating in the slaughter because attempting to prosecute all those in detention may cause more harm than good.

The Role of the United Nations, the African Union and Africa's Sub-Regional Organizations in Dealing with Africa's Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect

This article examines the basis for humanitarian intervention (HI) in the United Nations Charter, the African Union (AU) Charter and in a number of African sub-regional institutions. It traces the historical development of HI and argues that, while the right to HI emerged more than 100 years ago, that right also emerges from the Genocide Convention. The article argues that this treaty connects HI to the developing norm of the responsibility to protect (R2P) and examines the extent to which R2P is garnering wider support around the world. It focuses on the UN, and the various AU and sub-regional institutions and instruments that sanction HI. It assesses whether intervention can be authorized even in the absence of a UN Security Council mandate and examines the principles, application and interrelationship of R2P and HI in the African context. It traces the use of these norms in Africa, including in the various sub-regional structures, and evaluates the AUs political will and capability to deal with conflict and human rights abuse.

The Drafting of South Africa’s Final Constitution From a Human-Rights Perspective

Prior to the democratic elections of 1994, when the interim Constitution came into force, South Africa had had three previous constitutions. These constitutions were adopted in 1910, 1961 and 1983.1 These constitutions took little account of the multi-ethnic, multilingual and multicultural nature of South African society.2 Indeed, they catered almost exclusively for the white, Christian, Afrikaans, patriarchal minority.3 It is not surprising, therefore, that South Africa was a highly polarized and divided society.4 Many people had been dispossessed of their land, had had their language and cultures marginalized and had suffered gross human rights violations.5 The majority of South Africans had been denied access to an enormous variety of amenities, institutions and opportunities, including many places and types of employment, particularly in state institutions. The South African state systematically violated the rights of black people and subjected them to socioeconomic deprivation.6 Black South Africans were disenfranchised and many were forcibly removed from where they lived and had their citizenship removed.7

Prisons in Africa: an evaluation from a human rights perspective

Embora as prisoes na Africa sejam consideradas as piores do mundo, muitos outros sistemas carcerarios sao ainda piores no que concerne a violencia, superlotacao e varios outros problemas. Com isso, nao se pretende afirmar que as prisoes africanas sejam exemplos de direitos humanos. Muitas estao em condicoes deficientes e suas praticas estao em conflito com os padroes de direitos humanos. No entanto, as prisoes em diferentes partes do mundo estao em crise. Nunca antes houve tantos problemas nos sistemas penais e uma populacao tao grande nas instituicoes carcerarias. Este artigo analisa o desenvolvimento historico das prisoes africanas desde os tempos coloniais e avalia o legado que o colonialismo deixou nas prisoes do continente. Analisa tambem um conjunto de questoes referentes a situacao das prisoes na Africa, como detencoes preventivas, superlotacao, recursos e governanca, aprisionamento de mulheres e criancas, e reabilitacao. Um espaco substancial e dedicado as reformas que estao ocorrendo em todo o continente, e a recomendacoes em relacao a necessidade de mais reformas. Examinam-se tambem os papeis da Comissao Africana de Direitos Humanos e dos Povos e do Relator Especial sobre Prisoes e Condicoes de Detencao na Africa.

The Responsibility to Protect and Humanitarian Intervention in Africa

This essay investigates the connection between humanitarian intervention and R2P within an historical, legal, and conceptual context. It challenges the widely held view that Africa lacks the capacity to intervene in areas of conflict and human rights violations, arguing instead that the continent possesses the will and instruments to protect human rights. The author notes that, while the UN Security Council retains the primary responsibility for promoting global peace and security, the R2P norm remains contested even within the UN. The ECOWAS interventions in Liberia and Sierra Leone in the 1990s were initially undertaken without UN approval, but were later sanctioned by the world body. These interventions undermined the idea of state sovereignty as independence from external interventions, which had previously constrained humanitarian missions in Africa. However, the essay argues that the R2P principle was boosted by the establishment of the International Criminal Court in 2002 to prosecute persons suspected of committing war crimes, crimes against humanity, and/or genocide. In addition, the intervention clause in the AU’s Constitutive Act of 2000 supports the R2P principle while prohibiting unilateral interventions. Notwithstanding these developments, the author notes that the AU and Africa’s regional bodies still have a long way to go in translating the R2P doctrine into practice.

Why the Prohibition of Enforced Disappearance Has Attained Jus Cogens Status in International Law

This article examines the question whether jus cogens includes the prohibition of enforced disappearances, and why this is important. It surveys the meaning, context, development, status and position of jus cogens as well as enforced disappearance in international law, including their relationship to each other. It surveys the status of enforced disappearance in international law in general, as well as in international human rights law, international humanitarian law and international criminal law. The article scans the historical developments of international law, including developments over the last few decades, to indicate that the prohibition against enforced disappearance has attained jus cogens status. The legal framework is examined, including the jurisprudence that has emanated from a variety of sources. Specific treaties that deal with enforced disappearance are reviewed including the Declaration on the Protection of All Persons from Enforced Disappearance, the Inter-American Convention on Forced Disappearance of Persons, the Rome Statute of the International Criminal Court (ICC) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICED). What jus cogens is, what the controversies are that surround it, the different ways that it is understood within different schools of thought, and how these issues impact on whether the prohibition of enforced disappearance has attained jus cogens status are studied. The historical developments around enforced disappearances are examined in some detail to determine what its status is, particularly in relation to state practice, so as to determine whether it is jus cogens.

The coming of age of claims for reparations for human rights abuses committed in the south

Reparations for human rights and humanitarian abuses are a key challenge domestically and internationally. While there have been recent developments both in the theory and the practice of reparations for abuses committed in various places around the world, many of the violations committed in Africa, and elsewhere, during colonial times remain unresolved. This article reviews these developments and contextualizes them against the background of cases being litigated by Africans for abuses perpetrated against them in the colonial and apartheid era. Thus, cases being brought by Namibians and South Africans, in the United States in terms of the Alien Torts Claims Act, and other laws, as well as in other jurisdictions are examined. This is done to determine their likelihood of success in the light of the legal problems these cases have to meet. The political contexts of the cases are also examined, as well as why multinationals rather than states are usually pursued.Reparacoes por violacao dos direitos humanos e abusos humanitarios constituem um desafio central tanto no âmbito domestico como no internacional. Apesar dos novos avancos em relacao a questao das indenizacoes pelos abusos cometidos, inumeras violacoes ocorridas na Africa e em outros lugares, durante o periodo colonial, permanecem sem solucao. Este artigo faz um resumo desses avancos e os contextualiza contra o pano de fundo de processos que tem sido movidos por africanos com o objetivo de obter reparacao por abusos contra eles perpetrados no periodo colonial e durante o apartheid. Examinam-se aqui processos movidos por namibianos e sul-africanos nos Estados Unidos, nos termos do Alien Torts Claim Act e sao analisadas outras leis, tambem em outras jurisdicoes. Procura-se assim identificar a probabilidade de exito desses processos, a luz dos problemas legais que tem de enfrentar. Os contextos politicos dos processos tambem sao examinados, bem como o porque de as acoes recairem mais sobre as multinacionais do que sobre os Estados.RESUMENLas reparaciones por violacion de los derechos humanos y abusos contra lahumanidad constituyen un desafio central tanto en el ambito domesticocomo en el ambito internacional. A pesar de los nuevos avances en relacioncon la cuestion de las indemnizaciones por los abusos cometidos,innumerables violaciones ocurridas en Sudafrica y en otros lugares, duranteel periodo colonial, permanecen sin solucion. Este articulo hace unresumen de estos avances y los coloca en un contexto que toma como telonde fondo los procesos promovidos por africanos con el objetivo de obteneruna reparacion por los abusos perpetrados en el periodo colonial y duranteel apartheid. Se examinan aqui causas judiciales presentadas pornamibianos y sudafricanos en los Estados Unidos, en los terminos del AlienTorts Claim Act, y tambien son analizadas otras leyes de otrasjurisdicciones. Se busca de este modo identificar la probabilidad de exito deestos procesos, a la luz de los problemas legales que tendran que enfrentar.Tambien se examinan los contextos politicos de los procesos, asi como lasrazones por las cuales las causas presentadas han incidido mas sobre lasmultinacionales que sobre el Estado.

Transitional justice and the prosecution model: The experience of Ethiopia

I This paper was written in J 998 for the NGO Relationships Foundation also called the Newick Park Initiative (NP1) for its ongoing work in Rwanda, It was presented to the of Rwanda in J 998 which subsequently announced that the Gacaca would brought into the Justice in [he year 2000, While the government of Rwanda releaseel ils model at the of j 999, using the Gacaca structures to deal only with issues between 1990 and 1994, [[leir model is highly problematic to say the least. This paper does nor examine the governments model. but rather places on record the gestions given to the government of Rwanda, This draws from another ground paper on the history of the use of the Gacaca for NPI by Mary Taylor. An examination of the Rwandan governments Gacaca model is to be published as Sarkin forthcoming 2000, 2 See Amnesty International J 995 and Zaremba J 997 Reports differ significantly as to the actual number of killed. Estimates range from 500000 to one million, Most media repons estimate number to be closer to 500 000 while international NGOs which have been to Rwanda [Q investigate estimate the number is closer to one million, Zaremba eswnates there were 800 000 deaths, 3 See, for example. Amnesty International 1994. While the independent CommiSSion 01 Experts commissioned in terms of Security Council Resolution 935 (1994) found that the Tutsis had not perpetrated any acts which would fail within the definition of trle Genocide Convention. a repon drawn up for the High Commissioners of Refugees accused the Rwanda Patriotic Front of summarily killing 30 000 Hutus between June and September 1994, See UN document 5/1994/1125: Letter Boutros Boutros-Gali October 7 1994 Preliminary Report of the Independent of Experts in accordance with SecurIty Council Resolution 935 (1994) par 148, Des Milliers de Hutlls Massacres all Rwanda 1994, See Philpm 1996

Respecting and protecting the lives of migrants and refugees: the need for a human rights approach to save lives and find missing persons

ABSTRACT The world is in a migration crisis. Thousands of people are dying annually trying to get across the Mediterranean. However, this is not a problem unique to Europe. It has remained a hidden global problem for a long time. What is specifically unknown are the numbers of people who have gone missing while migrating. This article therefore focuses on such missing people. It examines the numbers of people that are known to have died, and argues that there is a general dearth of information about both people who have died, as well as those who have gone missing. The article reviews who missing people are and argues that the term missing is only found to any large measure in the laws of armed conflict, and most other situations that cause people to go missing, those who are subject to enforced disappearances, are not covered. The article argues that more research ought to be done on these issues and more data ought to be collected and analysed. It argues that people on migration routes are vulnerable and further argues that more needs to be done to provide them with protection and assistance. The laws dealing with the missing are analysed. The article argues that a human rights approach is needed to deal with the problem and that states need to play much more of a compassionate and humane role concerning migration matters and missing people generally and specifically. The article also argues for partnerships and coordination, that the families need to be given more support, and that more public education is needed to deal with the negative perceptions and misconceptions that exist in many societies to which those migrating seek to move to, as this will give greater positive impetus to states to deal more appropriately with those who migrate for whatever reason.

Why establishing a Credible and Legitimate Transitional Justice Model in conjunction with Democratic Reforms is Necessary for Long-term Peace and Stability in Uganda

Uganda is a specific focus of international criminal justice at present because of issues relating the International Criminal Court, and specifically the trial of the Lord’s Resistance Army commander Dominic Ongwen, which began in late 2016. In this context, this article reviews domestic developments in Uganda over the past few years to determine what Uganda ought to do about the past, and why the time is right for democratic reforms and transitional justice to occur in the country. It examines the processes Uganda has set up recently to determine when and how its past ought to be confronted, including a government inter-ministerial working group that has been dealing with transitional justice matters. The article considers why dealing with the past in Uganda, combined with democratic transformation, is a necessity, and why Uganda, at least in theory, has been embarking on a process to deal with the past. It examines the atrocities that have occurred in Uganda to examine why dealing with the past is essential to obtaining peace and stability. The article briefly examines Uganda’s two previous truth commissions to determine what should be avoided in a future process and what procedural and substantive steps could be taken to ensure a viable and successful transitional justice model combined with democratic reforms.