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
1. Under IHL, is this war situation an international or a non-international armed conflict? Does it matter that the accused have infiltrated from Angola? Whether the South African presence in Namibia was lawful or unlawful? Whether the South African government could be qualified as a racist regime? (GC I-IV, Art. 2; P I, Arts 1(4) and 96; P II, Art. 1)
2.
a. Is SWAPO a national liberation movement? If so, because of the international status of Namibia? Because of recognition by the international community? Of what relevance is it whether SWAPO is deemed a national liberation movement? Must SWAPO represent the South African people to be a national liberation movement fighting against South Africa? Or is it sufficient that it represents the South West African people? Is its national liberation war here directed against the South African government as colonial domination, alien occupation, or racist regime? (P I, Art. 1(4))
b. If SWAPO formally declared its intention to respect and apply the Geneva Conventions and the Protocols, would they then apply to this conflict? (P I, Art. 96)
3.
a. As fewer States were party to Protocol I (compared with the States party to the four Conventions), does this indicate that its Article 1(4) had little or no practical effect or value? Particularly because Israel and South Africa were not States Parties? Why?
b. Are none of the principles reflected in the Protocols customary law and thus binding on South Africa? Did the law of international armed conflicts under the customary law of 1982 apply to national liberation wars? 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?
c. Although the Court rejects the Protocols as a reflection of customary law, what remains the significance of the Courts consideration and use of the Protocols? What do you think of Professor John Dugards assessment of the status of the Protocols?
4. If the law of international armed conflicts applies, do the accused have prisoner-of-war status? Could they be sentenced, as in this judgement, if they were prisoners of war?
5. What impact would it have if the accused had not been wearing distinctive uniforms during their military engagement: Under the law of international armed conflict? According to the Courts approach? (P I, Arts 43-44; CIHL, Rule 106)
6. Is Professor Dugard correct in stating that Convention III makes it clear that a prisoner of war may not be executed by the detaining power for military activities prior to his arrest unless they amounted to war crimes? (GC III, Arts 85 and 100)
7. Under IHL, are the accused criminally responsible if they had foreseen that the actions (such as the laying of land mines and the damaging of railway tracks), which they and the group of infiltrators certainly did perform, could injure or kill innocent people? (P I, Arts 51, 57 and 85(3); CIHL, Rules 11-12, 15 and 17-21)
8. If the law of international armed conflict did not apply, was the law of non-international armed conflict necessarily applicable? Is the judgement compatible with that law?
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