Recent debates on transitional justice have concerned whether the field responds to the needs of victims who have suffered serious crimes. At the global level, the International Criminal Court (ICC) serves as the most visible institution of transitional justice and is most famous for its prosecutions of war criminals. Critics of the Court question its relevance to victims and allege that it embodies a Western form of justice, prioritizing retribution over restoration of victims' lives and societies. Often overlooked, however, is the Court's sister organization, the Trust Fund For Victims (TFV). Also established by the Rome Statute, the TFV is mandated to deliver court-ordered reparations to victims as well as to provide assistance to those affected by crimes under ICC jurisdiction. This assistance mandate creates a novel opportunity to reach a wide scope of affected individuals and to bring international justice directly to those who need it most. This thesis reviews research on transitional justice and employs the Trust Fund as a case study of localizing transitional justice through reparative assistance. This study concludes that the reparative assistance, when designed to respond to victims' needs, has material and symbolic significance to victims that meet the goals of transitional justice.

Magister Legum - LLM / The precise legal definition of crimes against humanity has always been elusive since their first codification in the IMT Charter in 1945. Jurisprudence applying the definition has reflected the uncertainty especially with regard to the contextual element that requires that crimes against humanity should be committed pursuant to some form of a policy of a state or organisation: The Policy Element. In the 1990s the ICTY in its early Decisions exhibited an inclination to broaden the scope of the application of crimes against humanity by downgrading the Policy Element to cover states and non-state actors in asymmetric armed conflicts. In 2002, this tendency culminated in the complete abandonment of the Policy Element requirement. Eminent international criminal law scholars are divided whether the ICTY was correct or not. At the same time, Article 7(2) (a) of ICC Statute has expressly provided for a downgraded Policy Element that somehow resonates with the ICTY as it covers states and organisations. In 2010, the Situation in the Republic of Kenya presented the ICC with a question whether the concept of organisation in Article 7(2) (a) of the Statute covers organisations generally or only state-like organisations. The Majority Decision resonated with the more recent jurisprudence of the ICTY and held that it covered all organisations. The Dissenting Opinion, however, restricted the Policy Element to only state-like organisations. This Research agrees with the recent ICTY position that has been reflected by the Majority Decision and postulates that the Policy Element should not be a requirement for crimes against humanity.

The prosecution’s duty of disclosure is at the heart of an accused’s right to a fair trial. Information and knowledge is power. Owing to the nature of criminal investigation, the prosecution almost always has more time and resources at its disposal in order to prepare its case than the defence. More importantly, the prosecution has access to certain information that the defence would not have and it has the means to access them. As a consequence, in order to ensure the fundamental rights of the accused are respected, it is crucial for the prosecution to disclose any relevant material to the defence in a timely manner so that the latter has a chance to prepare its case adequately. Despite the undeniable importance of this duty, prosecutors routinely violate their obligations of disclosing material to the defence that is of vital importance for case preparations. This thesis, accordingly, asks the question: why are disclosure problems so hard to resolve? Is the disclosure framework really workable in the international criminal tribunals? Public institutions, like the International Criminal Court, are supposed to be the epitome of justice; however, because of its unique characteristics, and perhaps ironically, international criminal law proved to be an ever harsher environment for the defendant when it comes to disclosure of evidence: the accused faces more obstacles when preparing its case and the Courts’ motivation to sanction prosecutors who fail to honour disclosure duties seems to be significantly lower when compared with national jurisdictions. In particular, due to certain difficulties and challenges faced by the international criminal tribunals and international prosecution, it is often argued that the standard of fairness can be different from the ones guaranteed to the accused in domestic courts. This thesis argues that these departures are not justified. Three main areas will be examined and analysed: the context in which the international criminal tribunals operate in, the nature of the prosecutor’s role, and the attitudes of the judges.

To prosecute perpetrators of war crimes the International Criminal Court (ICC) must connect the physical actions of the offence and ‘most responsible’ offenders charged with planning, instigating and intent on carrying out crimes of genocide, crimes against humanity, war crimes and crimes of aggression. To date there has been no empirical study of the types of physical actions that make up this offence. There is no baseline knowledge to contextualize the offence and enable the ICC to make links between the actions on the ground and a perpetrator’s culpability. The purpose of this study was to produce the first multivariate model of war crime ground action using cases of war crime offences in Cambodia and Rwanda. The aim was to first identify a representative range offence behaviours, and secondly determine if ground actions could be differentiated into distinct forms of offending that indicate culpability, that is, knowledge and intent in carrying out the crime. Lastly, offence behaviours assessed to determine if external factors could account for variances in offender behaviour, and help the ICC account for variances in behaviour when making inferences from the models. This was achieved through content analysis, cluster analysis, smallest space analysis and multivariate analysis of variance. It was found that as many as 44 different killing and disposal methods are used over the course of war crimes in Cambodia and Rwanda and that these offence actions can be classified into four distinct themes of behaviour. The indentified conservative, expressive, integrative and adaptive theme demonstrates that offenders were committing war crime offences in different ways. Using the underlying theories attached to each mode the ICC can infer the culpability of an offender based on which theme their actions fall into. In this case offenders subscribing to the conservative theme are likely to reflect the planning and instigation components of a war crime and offenders whose actions fall within the expressive theme are likely to be using war crimes as a cover for personal gratification and gain. Finally it was found that variances of behaviour can be attributed to the geographical location and timing of the event, and helps the ICC target their investigations to locations and periods linked to conservative behaviour, the offender who performs it and thus their culpability. This study shows that multivariate analysis can contextualize ground actions in manner that allows the ICC to make informed decisions of perpetrator culpability during war crimes.

Dans le cadre du procès pénal, un minimum de garanties doivent être accordées à chaque accusé. La justice pénale internationale n’est pas exempte de cette prescription, qui est également valable pour les individus accusés des crimes les plus affreux contre le genre humain, comme les crimes de compétence de la Cour pénale internationale. L’année 1998, année de la signature à Rome du Statut de la Cour pénale internationale, a marqué une étape définitive dans le processus de codification du D.I.P.. Le statut se fonde sur des valeurs communes propres à la communauté des Etats signataires, qui ont formellement introduits en droit international l’élément de la sanction et de la responsabilité pénale individuelle, sans toutefois négliger l’élément de la réglementation procédurale qui conduit à la sanction pénale à travers le respect des droits de la défense. Le Statut de la C.P.I. représente l’enveloppe normative formelle qui contient le patrimoine de droits inhérents à l’individu et, en même temps, le texte normatif de garantie sur lequel se fonde le consensus de la communauté des Etats en ce qui concerne la nécessité de combattre l’impunité selon les règles démocratiques du vivre social et de juger et punir selon les règles propres à l’état de droit universellement reconnues. / Dopted on July 1998 by the Rome Diplomatic Conference, the Statute of the International Criminal Court marks the culmination of a process of the international criminal justice, that started at Nuremberg and Tokyo and further developed through the establishment of the ad hoc Tribunals for the former Yugoslavia and Rwanda. The Rome Statute crystallizes the whole body of law that has gradually emerged over the past fifty years in the international community in this particularly problematic area and guarantees the same rights of the accused that are enshrined expressly in several conventions and treaties. In particular, the Statute of the International Criminal Court provides in articles 55 and 67 that the accused is entitled of a number of rights during investigation and trial. One come into existence the ICC has started a new era for the effective prosecution and punishment of serious violation of international humanitarian law wherever such abuses may occur and by whomever they may be perpetrated. This is accomplished in conformity to the rule of law and in the respect of the rights of the accused.

LL.M. (International Law) / The coming into force of the Rome Statute of the ICC (International Criminal Court) created a shift in state attitude in respect of the implementation and enforcement of International Law. In particular, several issues arise concerning the role to be played by states in the context of complementarity between the ICC and national courts. The ICC has jurisdiction over crimes of the most concern to the international community and its power is limited by, amongst others, the complementarity principle as well as the jurisdiction and functioning of national courts. States parties agreed to establish a permanent court which would put an end to impunity and prevent acts of core international crimes, as well as ensure effective prosecution of international crimes. Under the Rome Statute, states parties are obliged to develop measures at the national level in order to enhance international cooperation with the ICC. The complementarity principle encompasses, amongst others, the duty of every State to exercise criminal jurisdiction over international crimes, to enhance the capacity of national jurisdiction and to implement an appropriate national legal system which provides the same level of guarantee in investigating and prosecuting international crimes as the ICC. Both the ICC and national courts have jurisdiction over core crimes and this concurrent jurisdiction causes conflict between both institutions. The complementarity principle is based on the basis that states should maintain primary responsibility to protect their populations from genocide, war crimes, and crimes against humanity. However,these conflicts do not arise with Ad Hoc tribunals, whose Statutes emphasise the supremacy of the international criminal tribunals over national courts. The complementarity principle is based on the basis that states should maintain primary responsibility to protect their populations from genocide, war crimes, and crimes against humanity. The complementarity principle provides that prosecutions of crimes stipulated under the Rome Statute are primarily the task of states and the ICC is the court of last resort.6 This primary competence of national courts and the boundary between the two jurisdictions is given expression in article 17 of the Rome Statute. Prosecutions of core crimes before the ICC are only admissible if, and under condition that, an effective prosecution at the national level is threatened by legal, political and factual obstacles.

Magister Legum - LLM

Magister Legum - LLM

Magister Legum - LLM / The coming into force of the Rome Statute on the 1st July 2002 signified the birth of the International Criminal Court (ICC). The ICC came into existence as a permanent criminal court for the prosecution of Genocide, Crimes against Humanity, War Crimes and Crime of Aggression. There are 121 states-parties to the Rome Statute. This means there are many states that have not ratified the Rome Statute. The ICC would ordinarily not have jurisdiction over the nationals of these states if they committed offences within the jurisdiction of the ICC on the territories of the non-states parties. This paper intends to analyse whether the ICC has jurisdiction over nationals of non-state parties who commit crimes within the jurisdiction of the ICC on the territories of non-states parties to the Rome Statute. There are situations and cases that are before the ICC involving nationals of non-state parties that committed crimes on territories of non-states parties. These cases have come before the ICC by way of United Nations Security Council (UNSC) referrals. This paper will therefore examine the legality of UNSC referrals under international law in respect of nationals of non-states parties, who commit crimes within the jurisdiction of the ICC, on territories of non-states parties.

Magister Legum - LLM