Victim or villain: exploring the possible bases of a defence in the Ongwen case at the International Criminal Court

The reality of child soldiers who join rebel forces once they reach adulthood pres¬ents complex legal questions in the face of contemporary international criminal law principles which, on the one hand, afford protection to all children, and on the other, unequivocally call for the prosecution and punishment of those who are guilty of committing serious crimes. Currently, the case of Dominic Ongwen before the ICC raises contentious issues, including whether or not international criminal law permits the consideration of factors, such as the impact of the experiences as a child soldier on future conduct, when he is prosecuted for allegedly committing crimes during adulthood. This article specifically examines whether Ongwen’s experiences as a child soldier could serve as a possible defence and/or as a mitigating factor

Vergoedingsboetes in strafregtelike verrigtinge - ʼn vars perspektief

South African courts have to deal with the sentencing of convicted accused on a daily basis. While presiding officers are well-trained and experienced in sentencing matters, it seems that compensation orders are not generally invoked as a form of punishment. This article discusses the compensation penalty as a possible punishment means that could be used in our courts. It could be one of the factors that may help to reduce an accused’s prison sentence and also to compensate the victim who has suffered damage resulting from the criminal activity. The accused’s constitutional right to a fair trial provides that the lightest possible punishment should be imposed upon him. If a compensation fine is indeed a more lenient sentence, it should then be imposed. The actual sentence rests solely on the discretion of the presiding officer. There are various sentencing options available to the presiding officer of which life imprisonment is the heaviest, and a fine the most lenient. A fine is a form of punishment which requires the accused to pay an amount of money to the state. A compensation order on the other hand is a sentencing option that requires the accused to pay a monetary amount, as determined by the court, to the victim. Notably, the court will not grant such an order if the accused does not have the financial means to pay the compensation. Compensation orders may take various forms and are not limited to monetary amounts. Compensation orders are regulated in terms of sections 297 and 300 of the Criminal Procedure Act 51 of 1977. Compensation orders in criminal proceedings in South African courts are rather the exception than the rule. Although it is included in sections 297 and 300, it is not regularly applied by our courts. It may be that some courts are unaware of these types of sentences or that the focus is more geared towards the accused and on the interest of the broader community, as opposed to the victims. Consequently, victims in criminal proceedings are more often than not placed in a disadvantaged position as their requests for compensation are frequently disregarded by courts. Apart from the specific provisions of the Criminal Procedure Act dealing with such compensation orders, this discussion also deals with some court decisions where it was placed under the spotlight

Compensation orders in criminal proceedings - a fresh perspective

South African courts have to deal with the sentencing of convicted accused on a daily basis. While presiding officers are well-trained and experienced in sentencing matters, it seems that compensation orders are not generally invoked as a form of punishment. This article discusses compensation orders as a possible form of punishment that could be used in our courts. It could be one of the factors that may help to reduce an accused’s prison sentence and also to compensate victims who have suffered damage or loss resulting from criminal activities

The criminal accountability of child soldiers in the light of armed conflict

Magister Legum - LLMSouth Afric

The accountability of juveniles for crimes under international law

Doctor Legum - LLDChildren have been committing crimes during times of war and other armed conflicts since time immemorial. Yet, it is only over the last few decades that cognisance is being taken of child soldiers as a type of juvenile. The unfortunate sight of a child holding a gun has become a familiar picture throughout armed conflicts, especially in Africa. Both boys and girls are used as child soldiers and they can be as young as 5 years old. They are mainly regarded as victims of crimes under international law and are therefore usually rehabilitated once they have been disarmed and demobilised. Notwithstanding their need for rehabilitation, it is a fact that child soldiers commit some of the most egregious crimes under international law. They receive military-style training and are presumably not afraid of killing and carrying out orders. Yet it is recognised that generally they do not have the same level of maturity as adults. The reality of child soldiers who join armed forces therefore presents complex legal questions in the face of contemporary international criminal law principles which, on the one hand, afford protection to all children, and on the other, unequivocally call for the prosecution and punishment of those who are individually responsible for committing crimes under international law. Consequently, various safeguards need to be upheld to ensure that the best interests of the child are maintained once a child soldier is held criminally responsible. This thesis analyses the extent to which child soldiers can be prosecuted under domestic and international law, as well as the implementation of alternative measures to prosecution. The thesis proposes that a case-by-case approach should be considered when child soldiers are prosecuted for crimes under international law, thereby investigating and analysing the often distinctive circumstances related to their crimes.German Academic Exchange Service (DAAD

Section 9b of the protected disclosures amendment act 5 of 2017: Discouraging whistleblowing in South Africa?

The Protected Disclosures Act 26 of 2000 provides protection for individuals who blow the whistle on corrupt activities in South Africa. The Protected Disclosures Amendment Act 5 of 2017 widens the scope of the original Act. This article focuses on the provision in the amendment which criminalises the disclosure of false information by a potential whistleblower. It is argued that this provision may operate as a hurdle for those individuals contemplating divulging information related to corruption. Nevertheless, the amendment is an important one, since there have been cases where employees have provided false information concerning corrupt activities. However, at what cost will this amendment prevent future whistleblowers from disclosing valuable information necessary to detect and prosecute economic crimes? It is argued that the amendment could have an undesirable effect on the contribution of whistleblowing to the fight against corruption in South Africa. The amendment will be discussed against the backdrop of the important aims of the original Act and within the context of the prevention of corruption

A fresh perspective on historical sexual abuse: the case of Hewitt v S 2017 1 SACR 309 (SCA)

Sexual crimes continues to be a scourge in our society. It is therefore not surprising that the prevention and criminalisation of sexual crimes in South Africa has received a large amount of attention over the last few years. Contrarily, the matter of historical sexual abuse has received only occasional consideration. Cases of historical sexual abuse present numerous challenges to all parties involved. The victims of historical sexual abuse, often children at the time, are now adults. Some of these victims might not want to relive the experience or confront the offender. On the other hand, the offender might have been rehabilitated and become a respected citizen. In Hewitt v S 2017 1 SACR 309 (SCA) the Supreme Court of Appeal heard the appeal against the sentence of Bob Hewitt, a retired tennis champion. He was convicted of committing numerous sexual offences against young girls. The first of these crimes was committed more than three decades ago. This case note analyses the decision by the SCA while it also examines historical sexual abuse more generally in South Africa as well as in England and Wales, in order to establish whether any lessons can be learned from previous cases and laws as implemented in these countries

Deciphering Dangerousness: A Critical Analysis of Section 286A and B of the Criminal Procedure Act 51 of 1977

The violent nature of some crimes and the high crime rate in South Africa reflect the fact that some offenders constitute a real threat to the security of communities. It is understandable, therefore, that the state seeks to protect its citizens through preventive measures. Although South Africa has certain legal provisions on its statutory books, it seems that the declaration of persons as dangerous criminals is under-utilised. South African legislation dealing with the declaration of dangerous criminals can be improved by borrowing some traits of the Canadian legislation. Such features include the restriction of courts' discretion and the provision of concrete and more detailed guidelines on the nature of the offences for which the provision can be applied. The courts could also take into account the type of criminal history of the offender which would merit the declaration of a dangerous criminal. It is also important that the extent of the violence in an offence should be thoroughly defined in court. Courts need to balance their wide discretion on the matter with the provisions in the Act in order to protect the community against dangerous criminals. &nbsp

Die bekendmaking van die identiteit van anonieme minderjariges by meerderjarigheid: regverdigbaar of nie?

Die identiteit van minderjariges word nie bekendgemaak tydens hofverrigtinge nie. Sowel getuies as slagoffers en oortreders kry hierdie vergunning en word deur die wetgewer beskerm. Hierdie beskerming verval egter wanneer hulle 18 jaar oud word. Indien hulle nie die howe nader vir 'n verbod op die publikasie van hul identiteit nie, is daar geen remedie vir sulke persone nie. Hierdie bydrae kyk spesifiek na die posisie van anonieme minderjarige getuies, slagoffers en oortreders wanneer hulle 18-jarige ouderdom bereik. Dit word gedoen om te bepaal of hierdie persone se identiteit met die bereiking van 18 jaar bekendgemaak moet word en of hulle wel geregtig op verdere anonimiteit is. 'n Ander kwessie is of 'n veroordeelde minderjarige misdadiger anders as getuies en slagoffers by die bereiking van meerderjarigheid behandel moet word. Die moontlike effek van media-aanslae op die emosionele ontwikkeling van sulke 18-jariges word ook onder die soeklig geplaas. Verskeie bepalings in Suid-Afrikaanse wetgewing word ontleed wat wel die identiteit van minderjariges beskerm. Die twee uiteenlopende gevalle van Zephany Nurse en die Griekwastad-seun word met mekaar vergelyk. Die een was 'n slagoffer in 'n babadiefstalsaak en die ander 'n veroordeelde minderjarige oortreder. Albei is nou ouer as 18 jaar en waar die een se huidige identiteit deur 'n hofbevel beskerm word, is die ander se identiteit al verskeie kere bekendgemaak nadat hy 18 geword het. Daar word ook verwys na 'n Engelse saak waar beslis is dat twee veroordeelde minderjarige oortreders se nuwe identiteite wel verswyg moet word na hulle 18 jaar oud geword het, omdat die familie en vriende van hul slagoffer moontlik die wet in eie hande kon neem. Daar word aanbeveel dat die wetgewer oorweging daaraan moet skenk om die bekendmaking van die identiteite van minderjarige getuies, slagoffers en oortreders by die bereiking van 18-jarige ouderdom te hersien.DHE

Justice Delayed but not Denied: The Prosecution of Thomas Kwoyelo for International Crimes in Uganda

This article investigates the challenges of the application of international law in a domestic setting as depicted in the ongoing trial of Thomas Kwoyelo. Kwoyelo, a former child soldier and commander in the Lord's Resistance Army, is being prosecuted for the commission inter alia of murder, kidnapping with intent to murder, and pillaging, all as war crimes and crimes against humanity under International Humanitarian Law, Customary International Law and the Penal Code Act of Uganda. He is currently standing trial at the International Crimes Division of the High Court of Uganda. This trial is a unique test for the Ugandan judiciary, as it is faced with its first prosecution of an individual charged with crimes under international law. In a bid to apply international law domestically the Court has faced several challenges which have disabled the progress of the trial on many levels, arguably at the expense of the accused and the victims at large. The article primarily seeks to analyse the capability of the court to prosecute Kwoyelo for the commission of international crimes as well as to examine the challenges faced by the Court. The history of the conflict will be examined. This will be followed by an overview of the judicial hurdles faced by the Ugandan State in eventually charging Kwoyelo. The article will then analyse the present challenges faced by the Court. Finally, several recommendations are offered