For international criminal justice to take shape in Africa, there must be accountability from both the state and the community of states under the umbrella of the African Union (AU).

This was the position taken by Professor Ntombizozuko Dyani-Mhango, Head of the Department of Public Law at the University of Pretoria (UP), during her inaugural lecture, a hybrid event recently held at UP.

An inaugural lecture is an important milestone in the career of an academic as it offers them the opportunity to inform the university and academic community at large about their academic journey, their research to date and the direction they hope to steer their research in future.

“This is a special occasion in the life of an academic, to be celebrated with colleagues, friends and family,” said Dean of the Faculty of Law Prof Elsabe Schoeman.

In her presentation, titled ‘From the African Union to South Africa: Shaping the International Criminal Justice in Africa’, Prof Dyani-Mhango highlighted the obligations of states. “Certain acts and conduct that occur during armed conflict or during peacetime have been deemed international crimes under both treaty law and customary international law, and individual criminal responsibility for international crimes has been established,” she said. “The focus, therefore, is on states’ obligations.”

Prof Dyani-Mhango’s lecture covered the basis of her research over the past 20 years and included a look at contemporary problems in the development of international criminal justice in Africa; investigating the role of the AU and its member states in the establishment of the International Criminal Court; interrogating South Africa’s accountability for international crimes; and offering an outlook for future research on international criminal justice in Africa.

She said that her interest in international criminal justice was cultivated 20 years ago when she embarked on a master’s degree (LLM), specialising in international human rights and humanitarian law. “My mini dissertation investigated the developments in international law on rape and other forms of sexual violence during armed conflict, where I analysed judgements from the international criminal tribunals for the former Yugoslavia and for Rwanda,” she explained.

“The judgements held that rape and sexual violence during armed conflict may constitute genocide, war crimes and/or crimes against humanity in the form of torture, sexual slavery and other acts. I concluded that sexual violence during armed conflict against women is no longer considered spoils of war as these judgements demonstrate.”

Her doctoral thesis was on the status of the prohibition of sexual violence during armed conflict in international law with a focus on Africa. “In the first part of the thesis, I argued that sexual violence during armed conflict as an international crime threatens international peace and security, and its prohibition has acquired the jus cogens [translated as “compelling law”] status. This status gives rise to obligation erga omnes [translated as “rights or obligations owed towards all”], which a state in question owes to the international community of states. This means that if a state perpetrates or fails to halt international crimes from occurring in its territory, then the international community of states must react.”

Prof Dyani-Mhango said that in the second part of her thesis, she asked the question: does the AU have a legal duty to intervene using force in the territory of a member state where international crimes are committed? “I argued that the AU does have a legal duty to intervene,” she explained, “because the nature of the crimes calls for AU action should a member state fail to act. Article 4(h) refers to international crimes that are already defined in the Rome Statute of the International Criminal Court and the statutes of the international criminal tribunals. Subsequent judgements of these tribunals have confirmed the existence of these crimes and held that their prohibition has acquired the jus cogens status, which in turn gives rise to obligations erga omnes.”

Watch Prof Dyani-Mhango’s full lecture: