This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.

South Africa‘s high prevalence of HIV/AIDS coupled with a high crime rate and incidence of sexual violence necessitated the enquiry and study into the role of criminal law to address the wilful transmission of HIV.1 This study shows that criminal law can be used to punish offenders for wrongdoing and therefore finds application in the wilful transmission of HIV.2 The study distinguishes the dividing line between the justifiable use of criminal law and where use of the criminal law becomes discriminatory in nature and counterproductive to public health measures. The United Nations (hereinafter referred to as the UN) laid down guiding principles for countries to adopt when using the criminal law and stated that countries should use existing criminal law offences to prosecute intentional HIV infections.3 The South African Law Commission (hereinafter referred to as the SALC) endorses this approach. South Africa‘s use of the criminal law, in response to harmful HIV behaviour is in line with the UN recommendations as it uses the existing common law offences to prosecute the wilful transmission of HIV, namely murder, attempted murder and assault. Drawing from the writer‘s comparative study in Chapter Six below, South Africa, members of the Zimbabwean parliament, Canada, as well as the American Bar Association have all concluded that the use of specific HIV-related legislation creates some a form of stigmatization towards people living with HIV and is therefore not warranted. This study shows that criminal law has a role to play in the wilful transmission of HIV; however the creation of HIV specific legislation is not recommended and existing criminal law offences should be used to address harmful HIV related behaviour. Such an approach is in line with the guiding principles laid down by the UN and SALC.

Topic of this thesis is the Responsibility to Protect (R2P) doctrine that has become very current at the present time because of its use in legitimising the operation of NATO and other countries during the uprising in Libya in 2011. Apart from a number of sympathetic opinions, it has caused a wave critique, which has been of two types. Some criticised even the fact itself that the UN Security Council had labelled the Libya situation as a case suited for the application of this doctrine. There were also those who had agreed wholeheartedly with this designation, but who were disappointed by how the operation that followed had proceeded. This section of critics claims that NATO and other states that took part in the operation overstepped the mandate granted to them by the Security Council and thereby caused at least a partial delegitimising of R2P.

"Rwanda was largely destroyed in 1994. Among an endless host of problems, highly complex questions and dilemmas of justice, unity, and reconciliation haunt Rwanda to this day. A basic question confronting Rwanda is how to deal with the legacy of the conflict that culminated in the genocide of the Tutsi and in the massacres of Hutu opponents of the genocide. The UN set up an International Criminal Tribunal in Arusha, Tanzania, and Rwanda has its own courts. In both cases, the process of trying accused genocidaires is long, laborious, and frustrating. Only eight convictions have been handed down in Arusha after five years of work, while in Rwanda only some 3,000 cases have been disposed of. At least 120,000 detainees are in prisons around the country, the vast majority of whom are accused of participation in the genocide. At the present rate it is estimated that it will take anywhere between two and four centuries to try all those in detention. The Rwandese government has developed a new procedure called “gacaca,” lower-level tribunals that attempt to blend traditional and contemporary mechanisms to expedite the justice process in a way that promotes reconciliation. The impact of gacaca remains to be seen, and as a process, it certainly needs an evaluation or, at least, an attempt to evaluate its possible contribution to the perplexing questions of justice, unity and social reconstruction in the aftermath of genocide. This paper mainly aims to analyse the draft legislation on the gacaca jurisdictions. Further, this essay attempts to examine the impact of criminal trials in the aftermath of mass violence and genocide. Although conventional wisdom holds that criminal trials promote several goals, including uncovering the truth; avoiding collective accountability by individualising guilt; breaking cycle of impunity; deterring future war crimes; providing closure for the victims and fostering democratic institutions, little is known about the role that judicial intervention have in rebuilding societies. The present essay deals only with criminal trials. By definition, these are focused on the perpetrators of abuses and their allies. Although not examined in the essay, a comprehensive and holistic approach to dealing with a legacy of past atrocities should also include range of victim-focused efforts, such as programs for compensation and rehabilitation, the establishment of memorials, and the organisation of appropriate commemorations. The main sources of this study are textbooks, articles from journals and official documents of national and international bodies. Since this essay aims at evaluating the gacaca proposals, a great deal of attention is paid to the terms of the draft legislation. It is certainly premature to make an in-depth assessment of a draft law and the merits and flaws of the legal institution it is designed to set up. Only gradually and over a period of time can the gacaca become effective and credible. Further research aimed at gathering data through interviews, field observations, participant observation, study and analysis of the implementation can also illuminate experience in ways that analysis of published sources do not. A thorough and sound appraisal of this new institution must therefore wait some time. I shall nevertheless attempt in this essay to set out some initial and tentative comments on some of the salient traits of the future gacaca tribunals. This paper makes a preliminary “human rights impact assessment” of the implementation of the draft law establishing “gacaca jurisdictions”. The potential role of the new institution in rebuilding the Rwandese society is also discussed. Considering the many complex issues which still surround the process of justice in Rwanda six years after the genocide, as well as the continuing challenge to the judicial system in terms of the inadequacy of resources for dealing with such an enormous caseload, recommendations to help the process follow the analysis of the gacaca proposals (Chapter Three). To end impunity, it is necessary to respond in accordance with human rights law to the genocide and mass killings. Therefore, the starting point for our evaluation of the gacaca proposals will be an analysis of the proposals in human rights law. Does human rights law impose any affirmative duties to punish genocide and other mass killings that occurred in Rwanda? In addition, for the “gacaca jurisdictions” to be effective, they should not be viewed in isolation, as their performance will depend to a large extent on whether other judicial mechanisms and institutions are functioning properly. The relationships between the gacaca jurisdiction and other mechanisms are thus reviewed. In particular, the process of setting up the gacaca jurisdictions should include an evaluation of the genocide trials which have taken place to date both at the International Criminal Tribunal for Rwanda and in the domestic courts and apply the lessons learnt (Chapter Two). An evaluation of the potential contribution of the use of gacaca courts needs to be put into the broader context of the conflict in Rwanda. Thus, an analysis of the conflict in Rwanda is necessary to grasp the challenges facing the questions of justice and social reconstruction in the aftermath of genocide in Rwanda (Chapter One)." -- Introduction. / Prepared under the supervision of Professor Jeremy Sarkin, Faculty of Law, University of the Western Cape / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2000. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

"In response to President Kabah's request of June 2000, the United Nations Security Council called on the Secretary-General to negotiate an agreement with the government of Sierra Leone for the creation of a special court for Sierra Leone (hereafter SCSL), to investigate the atrocities committed within the country, by Resolution 1315 of 14 August 2000. Under the agreement concluded in February 2001, the SCSL has jurisdiction over crimes against humanity, war crimes and other serious violations of international humanitarian law committed since November 1996. The author assesses in detail the efficacy of the SCSL in dispensing justice up to date. The author concludes that, although the SCSL has accomplished much, it has shortcomings and faces changes that hamper the attainment of its objectives. ... This study is divided into five chapters. Chapter one provides the context in which the study is set, the focus and objectives of the study, its significance and other preliminary issues, including a statement of the problem and the literature review. Analysis of the conflict in Sierra Leone are necessary to grasp the graveness and the nature of the human rights violations and to understand the nature and extent of justice already meted out. Chapter two focuses particularly on the historical background of the conflict and the reasons that necessitate the establishment of the SCSL. The SCSL was established specifically to respond to human rights abuses committed during the civil war in Sierra Leone. Chapter three examines the major achievements of the Court in dispensing justice, and chapter four identifies the shortcomings and the challenges that confront the Court in its aim to fulfil its mandate." -- Chapter one. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2006. / Prepared under the supervision of Professor Lovell Fernandez, Faculty of Law, University of the Western Cape / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

The thesis deals with the question, in which situation the International Criminal court would probably open an Investigation of such crimes by an international body is a delicate question mainly with regard to a great extend of intervention into a state sovereignty, which manifests itself also as jurisdictional sovereignty. The thesis focuses on the case of Kenyan post-election violence in years of 2007 and 2008 and the aim to suppress Libyan revolution of 2011. Besides, the work is based upon the theory of (liberal) institutionalism, which could hopefully be applied to the international-law case of investigation of the crimes committed outside an armed conflict. Within the framework of the thesis I try to reveal criteria determining whether the International Criminal court opens or not an investigation to a situation of human rights abuse. For the purpose I take into consideration world and local country status, character of the perpetrators, extend of the attacks, country's relation to the great powers, as well as readiness of the country to prosecute the perpetrators within the national jurisdiction. As conclusion I try t compare the findings from the part applying liberal institutionalism and from the case studies.

This thesis provides a rhetorical analysis of the Western representation of the Kosovo conflict and its resolution in the year 1999. By reviewing political, scholarly and media rhetoric, the thesis examines how the dominant narrative of "genocide in Kosovo" was created in Western discourse, arguing that it gained its persuasive force from the legacy of the collective memory of the Holocaust. Using the framework of Kenneth Burke's theory of Dramatism and Walter Fisher's theory of the narrative paradigm, this thesis aims to understand how language, analogy and collective memory function in rhetoric to shape audience perceptions and guide political and military action. The study illustrates the mechanics of the operating rhetoric by analyzing two primary sources, the rhetoric of U.S. President Bill Clinton and British Prime Minister Tony Blair. / by Tajana Bjellos. / Thesis (M.A.)--Florida Atlantic University, 2010. / Includes bibliography. / Electronic reproduction. Boca Raton, Fla., 2010. Mode of access: World Wide Web.

During the 1990s Yugoslavia and Rwanda were swept by wars accompanied by serious violations of international humanitarian law. Grave and severe crimes wiped away lives and destroyed properties. The United Nations Security Council determined that the violations committed constituted threats to international peace and security, declaring itself empowered to take action. It established international ad hoc criminal tribunals for Yugoslavia and Rwanda with the mandate of prosecuting individuals responsible for those crimes as an enforcement measure under Chapter VII of the United Nations Charter. Investigating the tribunals’ effectiveness enables one to assess whether they achieved the anticipated outcomes based on the tribunals’ mission, goals, and objectives without creating other problems. The research relies on naturalism and positivism to put the tribunals in a moral and ethical perspective. By examining how the tribunals were established, their objectives, the investigation and prosecution processes, the reliance on guilty plea and judicial notice and the imputation of criminal responsibility by applying joint criminal enterprise and command responsibility doctrines; the study argues that prosecution has not been an effective tool as contemplated by the Security Council. An analytical and comparative review of various domestic and international legal resources helped to provide an insightful approach for an effective prosecution of international crimes. Credible, legitimate and legal judicial institutions in which professional judges and prosecutors discharge their function independently, impartially and are accountable may achieve justice for the victims of international crimes. Ad hoc tribunals failed to thoroughly investigate and assume the dual role of prosecution. They conveniently used legal procedural tools that fit petty domestic crimes; unfortunately demeaning the magnitude of international crimes of concern. Criminal responsibility was mostly imputed without properly scrutinising the legality, extent, actual participation and guilty mind of the alleged perpetrators. Effectiveness should be a value assessment. Imposed and overburdened ad hoc tribunals are inappropriate and should be abandoned. / Public, Constitutional, & International / LLD

Les violations aux droits humains causent des milliers de victimes chaque année, des mécanismes de justice sont élaborés afin de répondre à ces crimes, mais les victimes demeurent peu consultées. Par le biais d’entretiens semi-directifs, cette étude présente le point de vue et les attentes des victimes de crimes contre l’humanité du Cambodge et du Rwanda sur la justice. La justice sociale constitue le cadre théorique de cette étude. Les résultats montrent que la justice pénale est centrale à la définition de la justice. La réparation et la vérité en constituent aussi les éléments essentiels. Toutefois, la capacité des tribunaux à rendre compte de la vérité est critiquée par les répondants créant un écart entre ce qu’elles veulent et ce qu’elles obtiennent. La qualité de la prise de décision et du traitement interpersonnel favorise aussi la perception de justice du point de vue des victimes. Les différentes composantes de la justice perçues, comme la punition, la réparation et la procédure, varient toutefois en fonction du contexte social et historique de la victimisation. / Human rights violations cause thousands of victims every year. Justice mechanisms, such as the International Criminal Court, have been developed to respond to these crimes, but victims remain under consulted. In this study, semi-structured interviews were conducted with Rwandan and Cambodian victims of crimes against humanity. Using social justice theories as a theoretical framework, this study examines victims’ perceptions of justice. The results show that while criminal justice is central in victims’ definition of justice, reparation and truth also are essential components. However, the criminal court’s ability to achieve truth is criticized by respondents creating a gap between the truth that they seek and the truth that they obtain. The quality of decision-making as well as how victims are treated also contribute to victims’ perception of justice. However, victims’ justice objectives vary according to the social and historic context.

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