South Africa S. v. Petane Case Study
Order ID 53563633773 Type Essay Writer Level Masters Style APA Sources/References 4 Perfect Number of Pages to Order 5-10 Pages Description/Paper Instructions
a. Which roles does IHL assign to the Protecting Power?
b. Which purpose is served by notifying the Protecting Power of trials or sentences of prisoners of war? (GC III, Arts 104 and 107)
c. What may the results be if a court of a Detaining Power fails to notify the Protecting Power of the trial of a prisoner of war? Does the court then have no jurisdiction to try him, as the defendant here argues? Or is it that the trial could not proceed without such notice? Is the issue of notification thus a jurisdictional or a procedural issue? (GC III, Arts 104; P I, Art. 45)
2.
a. If Protocol I had been binding for South Africa, why does the Court nevertheless state that, even in that case, failure to give effect to its provisions only might amount to an irregularity?
b. Under which condition could the defendant invoke Protocol I although at the time South Africa had not become party to it? If Protocol I was applicable, what would the consequences be for the defendant? Could the trial take place? Would he have combatant status? Could the Court decide upon this question? If he did have combatant status, could he be punished for acts of terrorism? Could he be punished for having killed South African soldiers? Is it necessary for attaining or maintaining prisoner-of-war status that he must not have attacked civilian targets, as the Court asserts? (P I, Arts. 44 and 45)
c. Even if Protocol I is binding for South Africa as customary law, must not both parties to the conflict be bound by Protocol I for it to be applicable? Is the ANC a party to the Protocol? Is it bound by customary law? If Art. 1(4) of Protocol I is customary law, does the ANC have to formally declare its intention to respect and apply the Geneva Conventions and the Protocols in conformity with Art. 96 of Protocol I? If Art. 1(4) of Protocol I is customary law, is customary IHL of international armed conflicts applicable in the conflict between the government of South Africa and the ANC even though neither desired its application?
3.
a. Has there to be first usus and later opinio juris to form a customary rule? Or can both elements appear simultaneously? Are there certain material sources which show usus and others opinio juris ? Or do all show simultaneously usus and opinio juris ?
b. Is customary law based on the acceptance of States or on their opinion? Does the answer to that question matter? Can you think of a rule which would be either customary or not, depending on the answer to this question?
c. Can customary IHL also be derived from State acts such as diplomatic statements, undertakings and declarations? Are the latter usus ? Can only acts or also words show usus? Do claims necessarily conflict, or can they also show agreement on a norm? If declarations also count as practice, must they refer to an actual situation, or can they also be abstract statements about (i.e. in favour of) the rule? Can a rule become customary on the basis of statements alone? What if the actual behaviour of belligerents is incompatible with those abstract statements?
d. Do UN General Assembly resolutions constitute State practice? Do repeated announcements only at best develop the custom and usage of making such pronouncements? What about, for instance, the prohibition of torture? Is there no customary law against committing torture because some States practice torture? Yet what explains the fact that most of those States deny committing acts of torture? Do such denials not constitute a concrete act of which the Court speaks? Would DAmato agree?
e. Is ratification of Protocol I (together with the practice of other States) an instance of State practice able to make all its provisions customary? Is non-ratification of a treaty strong evidence of its non-acceptance? Does non-ratification indicate non-acceptance of all rules contained in the treaty, or perhaps only of some of them? Thus, does non-ratification of Protocol I automatically mean that Art. 1(4) of Protocol I in particular is not customary law?
f. Once a rule has been included in a multilateral treaty, is the question whether it is customary only relevant for non-Parties? Has only their practice to be considered whenever evaluating whether it is customary? What would this mean for rules laid down in a treaty as widely accepted as the Geneva Conventions?
g. Does the fact that when Protocol I was concluded in 1977 the category of racist regimes listed in Art. 1(4) was limited to very few countries, one of them being South Africa, make it impossible to determine the general usage necessary for establishing the article as customary law? If so, because those States chose not to be bound by the Protocol? Even if almost all other States considered Protocol I applicable to such a situation? If a situation rarely arises or arises in only a few States, can rules regulating that situation never become customary international law? Is the position of the Court on this question connected to its theory on what counts as usus ?
h. Can a rule of IHL become customary even if South Africa objects to it? Must a rule of customary IHL be applied by South African courts although South Africa has never accepted that rule? Even though South Africa was against that rule as a treaty rule in Protocol I? Even though South Africa has persistently objected to that rule?
i. Are none of the principles reflected in Protocol I customary law and, as such, binding on South Africa? Under the customary law of 1987, did the law of international armed conflict apply to national liberation wars? Does it apply under todays customary law, taking into account that South Africa became a State party to Protocol I in 1995? How could a rule like Art. 1(4) of Protocol I become customary?
4. Do you agree with the criticism that Art. 1(4) of Protocol I introduced political objectives into humanitarian law? Does Art. 1(4) of Protocol I introduce anything at all, i.e., is it an innovative development in the law of war, or is it merely a reflection of existing international law? Does Art. 1(4) lead to a situation where both sides in an armed conflict are not equal under IHL? Does Art. 1(4) violate the separation between jus in bello and jus ad bellum? [See United States, President Rejects Protocol I]
5. What is the place of international customary law within your national law? Within South African national law at the time of the case? Must customary law be universally recognized before it may or must be incorporated into your national law?
RUBRIC
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