Thesis (Ph. D.)--UCLA, 2008. / Vita. Includes bibliographical references (leaves 384-427).

Univ., Diss.--Bochum, 2002. / Literaturverz. S. 402 - 436.

Humanitarian interventions tend to be justified by claims to the existence of an obligation upon ‘us' (the benevolent saviours) to intervene militarily when a state is responsible for large-scale atrocity crimes against its own population. However, this justification is paradoxical, given that there is rarely held to exist a commensurate obligation to address structural violence (even when ‘we' may be partly responsible for, or complicit within, structures that are violent). The paradox arises because structural violence can be harmful – even evil – in its own right, and can also lead to – or exacerbate – direct violence. Hence, intervening militarily, and inevitably causing further harm in the act of intervening, results in a moral shortfall. This shortfall is indicative of a prevailing understanding of harm that is blind to the potential for structures to be violent. In responding to the paradox, I adopt a critical cosmopolitan perspective to argue that because structural violence can be harmful on a great scale, and because it is co-constitutive of direct violence, we ought not to countenance intervening with the use of military force (with what this brings in the form of inevitable intended and unintended harm) to stop direct violence without also considering and addressing violent structures, especially if they are violent structures that we are, ourselves, embedded within. Therefore, it is morally imperative to engage in an ongoing process of illumination and addressing of evil structures to rectify the harms they cause, alongside any efforts to stem direct violence, if any sort of intervention is to be legitimate and just. This requires us to a) expand our understanding of harm and evil at the global level, and b) engage in consistent and sustained deliberative processes that bring to the forefront structural violence and structural underpinnings of direct violence.

Magister Legum - LLM / This thesis assessed the effectiveness of the Special Court in relation to the impact is has made in cultivating the rudiments of a human rights culture, dispensing justice, ending a culture of impunity, effecting unity and national reconciliation in post war Sierra Leone. / South Africa

A presente dissertação de mestrado analisa a atuação do Tribunal Penal Internacional para Ruanda, corte com sede na Tanzânia, criada sob os auspícios da ONU e encarregada de processar as pessoas responsáveis por sérias violações ao Direito Internacional Humanitário cometidas durante o genocídio da população tutsi organizado por membros do governo e do exército de Ruanda em 1994, e que vitimou mais de 800.000 civis. Estuda-se a evolução do Direito Internacional Penal ao longo do século XX até a criação do Tribunal e a história e a organização política de Ruanda até a eclosão da guerra civil e do genocídio. Apresenta-se a estrutura, a competência e a dinâmica dos julgamentos, promove-se o estudo de quatro casos paradigmáticos julgados, e verificam-se os resultados concretos alcançados pelo Tribunal para impedir a impunidade, apontando este órgão judicial como importante precursor do Tribunal Penal Internacional criado pelo Estatuto de Roma em 1998. O trabalho também ambiciona perpetuar a lembrança de um dos maiores massacres da história, comparável ao próprio Holocausto, e o tratamento dado pelo Direito e pela comunidade internacional ao episódio / This dissertation examines the performance of the International Criminal Tribunal for Rwanda, Tanzania-based court, created under the auspices of the UN, in charge of prosecuting people responsible for serious violations of International Humanitarian Law committed during the genocide of the Tutsi population, organized by members of the government and the army of Rwanda in 1994, which killed over 800,000 civilians. It is studied the evolution of International Criminal Law over the twentieth century until the establishment of the Court, and also the history and the political organization in Rwanda until the outbreak of civil war and genocide. This dissertation presents the structure, competence and dynamics of the trials, promotes the study of four paradigmatic cases tried, and verifies the concrete results achieved by the Court to prevent impunity, pointing this judicial body as an important forerunner of the International Criminal Court created by the Rome Statute in 1998. The study also aspires to perpetuate the memory of one of the greatest massacres in history, comparable to the Holocaust itself, and treatment given by the law and by the international community to the episode

Magister Legum - LLM / The first part of this study evaluates the historical events that led to the referral of the DRC situation to the ICC. This includes the background of the conflict and the extent to which international crimes have been committed. Both regional and domestic attempts and initiatives to address the conflict are discussed, with specific reference to peace agreements and restorative justice mechanisms. The second part of the study deals with the prosecution of the perpetrators by the ICC. It examines the approach of the Pre- Trial Chamber to two legal issues, the principle of complementarity and modes of criminal participation as part of the ICC Statute. In this regard, the study makes a critical evaluation of two preliminary decisions confirming the charges against Lubanga, Katanga and Chui before the cases proceeded to the trial stage. / South Africa

Magister Legum - LLM / This paper analyses head of state immunity, a traditional rule of international law, in relation to the indictments by the International Criminal Court (ICC) in 2009 against the current Sudanese President Omar Hassan Ahmad Al Bashir. It can be agreed that the doctrine of immunity in international law attempts to overcome the tension between the protection of human rights and the demands of state sovereignty. The statutes and decisions of international criminal courts make it clear that no immunity for international crimes shall be attached to heads of states or to senior government officials. However, the case against the Sudanese President, where the jurisdiction of the ICC was triggered by the UN Security Council‟s referral of the situation in Darfur to the Court, represents the first case where a serving head of state has, in fact, been indicted before the ICC. From this case, a number of legal issues have arisen; such as the questions where the ICC‟s jurisdiction over an incumbent head of state, not party to the ICC Statute, is justified, and the obligations upon ICC state parties to surrender such a head of state to the requesting international criminal court. This paper gives an analysis of these questions. / South Africa

Magister Legum - LLM / Kenya’s December 2007 Presidential elections sparked a wave of violent clashes over allegations of election rigging. The protests broke out along ethnic lines, causing greater civil unrest. There have been allegations that during these outbreaks of violence crimes against humanity were committed. This violence attracted world-wide concern and was universally condemned. Kenya is loathe to prosecute the perpetrators or those who bear the highest responsibility for the alleged commission of crimes against humanity. It has instead established a national investigatory mechanism, the Kenyan Truth, Justice and Reconciliation Commission (hereafter TJRC). This approach adopted by Kenya has been criticized for the fact that it fosters a culture of impunity. However, the Prosecutor of International Criminal Court (hereafter ICC) has used his proprio motu powers to initiate an investigation of alleged commission of crimes that fall within the jurisdiction of the Court. This research paper has analysed the reasons for the proprio motu intervention of the ICC in Kenyan situation. It also examined whether Kenya was unwilling or genuinely unable to prosecute the perpetrators of the post-election violence of 2007. Furthermore, the paper evaluated the provisions of the Kenyan TJRC, the major shortcomings of the Commission and the challenges it is facing in fulfilling its mandate. In conclusion the paper analysed the relationship between TJRC and ICC and re-evaluate any role that the two bodies could play in dispensing justice in Kenya. But before that, the paper laid down the factual background that led to the proprio motu interevention of the ICC in Kenya where a truth commission had alreday been established. / South Africa

Magister Legum - LLM / This research paper is an analysis of the case United States v Flick et al which took place in 1947 in Nuremberg, Germany. Friedrich Flick, a powerful German industrialist, and several high ranking officials of his firm were tried by a United States military tribunal for war crimes and crimes against humanity committed during the Third Reich. The proceedings and the decision itself are the subject of a critical examination, including an investigation of the factual and legal background. The trial will be regarded in the historical context of prosecutions against German industrialists after World War II. Seen from present-day perspective, the question will be raised whether any conclusions can be drawn from the Flick case in respect of the substance of present-day international criminal law. / South Africa

Magister Legum - LLM / With regard to the establishment of legislative frameworks for investigating and prosecuting genocide, crimes against humanity and war crimes at both national and international level, a number of pertinent issues come up concerning the Court which should have primacy to deal with a particular case. States have had a variety of options at their disposal, such as complementarity, exclusivity, subsidiarity and concurrent jurisdiction principles. As a rule, these experiences find their limits in the full criminalisation of conduct that is also punishable before the international criminal tribunals under international law, ignoring the fact that international law does not provide definite guidance with respect to a number of questions in relation to interaction between national and international jurisdiction vis-à-vis the ‘core crimes.’ In addition,a considerable increase in the content of international law and divergences in various legal systems in criminal law, both general and special, since the end of World War II, influence the effective prosecution of ‘core crimes.’ Against this background; this work is organised into five chapters. Chapter one gives a general introduction and background to the study. Chapter two will set out the present international legal framework governing the prosecution of ‘core crimes’ in national courts and a description of the relevant practice in various states. Chapter three will examine critically the jurisdiction and overlaps of the international courts and ad hoc tribunals,along with the corresponding models of international criminal justice of exclusivity, subsidiarity, complimentarity and concurrent jurisdiction. Chapter four seeks to discuss the optimal relationship based on interactions between national and international jurisdictions. It will also include the merits and limits of both jurisdictions, basing on existing precedents and legislation.Finally, Chapter five contains a summary of conclusions drawn from the whole study and winds up with a set of recommendations.