Doctor Legum - LLD / The crimes of genocide, war crimes and crimes against humanity are customary international law crimes. The African continent has experienced quite a number of cases involving these crimes, and the continent's ability and willingness to prosecute offenders’ remains in doubt. As a result, in the past decade or so, non-African states have sought to institute proceedings against African leaders accused of perpetrating international customary law crimes. These attempts have taken two distinct formats, the first being the use of Universal Jurisdiction {UJ), and the second being the attempts by the International Criminal Court {ICC) to indict and prosecute African leaders. The African Union {AU) has vehemently opposed both these attempts on the grounds that they are inspired by neo-colonial thinking that is aimed at stifling peace and reconciliation efforts on the continent.Proponents of UJ argue that this principle is fundamental to international justice and the global fight to end impunity for international crimes. UJ allows a state to exercise jurisdiction over crimes committed outside its territory and for which the normal jurisdictional links of nationality and passive personality do not exist. Although the concept of UJ has been part of international law for quite some time, its relevance today has been questioned by national courts and international judicial bodies. Its recent usage by both Belgian and French courts, as well as by international tribunals, such as the ICC, has attracted sharp criticism from many African states. Given that African states constitute the biggest block of signatory states to the Rome Statute, their voice cannot be ignored. Their principal concern is that the ICC is unfairly targeting African leaders for prosecution. The negative sentiment is also evidenced by some African leaders' deliberate refusal to comply with ICC requests or to cooperate in cases where warrants of arrest have been issued against African leaders, such as in the case of the Sudanese President, Omar Al Bashir, and the present prosecution of the Kenyan President, Uhuru Kenyatta and his deputy, William Ruto. Given the aversion shown by African states to ICC prosecution of state leaders, and attempts by some non-African states to resort to UJ in order to try African leaders, the question is whether African states themselves have a solution to the problem of impunity on the continent? The answer might lie, partly, in the age old concept of UJ, where individual African states might be able to exercise jurisdiction over the international crimes of genocide, war crimes and crimes against humanity. It might also lie in the ability and willingness of African states to strengthen the Continent’s own, regional institutions by setting up an African international criminal tribunal, or strengthening an existing one to deal with these issues. It therefore becomes important to assess what the African standpoint on UJ is, as against what the practical realities are. In other words, what continental or regional institutions exist to combat impunity for international crimes: what do states do in fact?

Magister Legum - LLM / This paper will explore the history of the outbreak of religious related violence in Nigeria and the response of Nigeria and the African Union to the acts of the Boko Haram group both legally and procedurally. The intervention of the ICC as a viable option to combat the scourge of the group will also be examined. Other options such as trial in the Court of third States under the principle of universal jurisdiction and a special court jointly facilitated by the States involved will also be assessed.

Magister Legum - LLM / Africa seemingly cursed with instability, conflict and gross human rights violations has been the largest scene of operation of international criminal justice. This understanding led African States to be some of the key proponents in the push for an International Criminal Court. Of late however, mounting policy and operational fluxes between African States and international criminal justice has put Africa's relationship with international justice on ice. This in turn has awoken within the region's geopolitical body, the African Union, the need for an exclusively African response to international criminal justice as it is currently considering extending the jurisdiction of the African Court of Justice and Human Rights to cover international crimes. This Research Paper aims to chart the genesis of this move through the decision-making system of the African Union and within the broader context of the Union's emerging Human Rights, Peace and Security Architecture. It will simultaneously assess the viability of this proposal within the backdrop of recent global developments with a view to identifying key legal and policy ramifications. It aims to show that there may be room for the adoption of an empowered African Court as a regional complement to the international criminal justice system.

Magister Legum - LLM / The concept of transitional justice keeps changing as the concept of conflict changes. The paper analyses the transitional justice process in Kenya after the 2007-2008 Post-Election Violence. Very little has been written on the success or failure of transitional justice in Kenya after eight years of the implementation of transitional justice mechanisms which included truth commission, criminal prosecutions and recommendations on reparations. Furthermore, the architects of Kenya’s transitional justice process failed to put in place a mechanism against which the progress of transitional justice could be measured. It was therefore necessary to analyse the overall transitional justice process in Kenya to determine its efficacy. Kenya’s transitional justice process seemed to be a stand-alone occurrence with no ties to the laws or the various institutions in the country compared to Uganda's national transitional justice policy. The transitional justice process as a whole did not assign rights and responsibilities to the public, the three arms of government, the devolved governments, civil society or non-governmental organisations so that the various stakeholders could then check and balance each other with the aim of ensuring that transitional justice would be implemented. To date, there are still calls for the full implementation of the transitional justice processes especially in light of the International Criminal Court having terminated the last case in relation to the post-election violence as well as Kenya’s impending general elections in 2017. This paper begins by introducing transitional justice in Kenya and providing the 2007-2008 PEV as a background. The paper then investigates the ideal circumstances for implementing transitional justice mechanisms. In the case of Kenya, it is concluded that the situation in 2007-2008 PEV did not conform to the traditional context of societies in transition. Whereas there was no regime change that preceded the 2007-2008 PEV, there were human rights violations which were ethnically driven. The study illustrates how the violation of human rights depended on the ethnic tribe the person belonged to, hence identifying the main problem in the 2007-2008 PEV as negative ethnicity. Looking at the contextual precedence set by Latin American countries and later followed by other countries undergoing change, ethnicity has not been dealt with and to this extent Kenya presents a unique situation. The paper concludes that each of the transitional justice mechanisms implemented in Kenya had no impact on Kenya and as a result, the whole transitional justice process had failed. The paper recommends that stakeholders address and solve the inter-tribal fears and suspicions in order to create an opportunity for the different tribes to establish a relationship based on transparency. In the alternative, the paper recommends the adoption of the Territorial Self-Governance (TSG) which allows ethnic groups in a particular sovereign region to regulate their own affairs thus reducing the risk of ethnic tensions on account of one group's concerns not being addressed adequately. Ultimately, the paper recommends that the Truth Justice and Reconciliation report be tabled before Parliament for approval in order for the transitional justice mechanisms to be implemented fully. / German Academic Exchange Service ( DAAD)

Le 25 juin 2014, Germain Katanga devenait la première personne définitivement condamnée par la Cour pénale internationale. Dans l'indifférence générale, ce congolais originaire d'un petit village de l'Ituri rentrait ainsi dans l'histoire d'un pouvoir naissant pour avoir fait transiter des armes ayant servi à une attaque contre des populations civiles. A travers une déconstruction étape par étage du cheminement qui a amené cet homme de la chasse aux Okapis à sa condamnation pour crimes de guerre et crimes contre l'humanité, nous avons cherché à comprendre comment une institution créée pour juger les plus grands criminels a pu croiser le chemin de celui qui n'avait auparavant jamais entendu parer de « La Haye ».Dénuée de contrôle social, incapable de jouer le rôle qui lui a été attribué la CPI s'est longtemps défaussée sur les États pour expliquer les échecs de sa première décennie d'exercice. La réalité est plus complexe, et laisse apparaître en creux une incapacité structurelle à agir contre les intérêts de l'ordre étatique et a fortiori des dominants de cet ordre étatique. Après avoir décrit l'institution de l'intérieur, en nous appuyant sur notre propre expérience à la CPI et au ministère des affaires étrangères français, nous avons donc tenté de comprendre de lire la Cour depuis la perceptive hobbesienne ; appuyé sur un travail sur les terrains d'enquête de la CPI en Afrique, plus de cent entretiens avec les principaux protagonistes de l'institution et de l'affaire Katanga, nous avons ainsi suivi le cheminement casuistique inversé, partant de la plus petite échelle de l'institution pour finir par en interroger le sens dans son ensemble. / June 25, 2014, Germain Katanga became the first person to be convicted and sentenced by the International Criminal Court. As his case continued to be cloaked in silence, this congolese villager from the remote province of Ituri became a figure in the early history of a rising institution. Through a deconstruction of each stage of the proceedings against Katanga for war crimes and crimes against humanity at the ICC, this work attempts to understand how an institution built to prosecute the masterminds and those most responsible for the gravest crimes and atrocities targeted a 24-year-old Okapi hunter who never before heard of “The Hague”.Lasking social control, unable to play the role for which it was designed more than ten years ago, the ICC has systematically blamed the States for its numerous failures. The reality is more complex, and this research reveals that the institution has a structural incapacity to act against the interests of the state order, and a fortiori against the dominants of the order, therefore rendering obsolete any of its cosmopolitan pretentions. Following from a description of the ICC “from the inside”, based on the author's experience at the office of the Prosecutor and at the French Ministry of Foreign Affairs, this work assesses the Court through a Hobbesian lens. Relying on field work in Congo and the Central Africa Republic, more than a hundred interviews and a novel analysis of Hobbes Leviathan this work takes a bottom-up approach, starting from the smallest scale - from what was considered a minor case – and ultimately questioning the institution as a whole.

Terrorism is not a new threat to the international order but it is a threat that has grown more urgent in the last few years. Terrorism has become a tragic circumstance of everyday live and has caused a remarkable loss of lives. It was only after the terrorist attacks against the United States on September 11 2001, that the international community realised it needed to co-operate and take actions against terrorism on an international level. One response has been the adoption of international rules for the suppression and eradication of terrorism and terrorist activities and making accountable the perpetrators of such acts. In fact, the contingent character of ad hoc tribunals encourages states to carry out their idea of establishing a permanent penal jurisdiction. The establishment of the International Criminal Court is considered a crowning achievement for preventing and prosecuting abominable crimes. The jurisdiction of the court shall be limited to the most serious crimes of concern to the international community as a whole; this includes crime of genocide, crimes against humanity, war crimes and eventually crime of aggression. However disagreement over a definition of what constitutes terrorist activity made it impossible to include within the jurisdiction of the Court such serious crime named terrorism. There have been multiple approaches to the issue, but despite all efforts to pursue individuals who committed human rights violations, the ICC’s subject matter jurisdiction is limited since the international community could not reach to a consensual definition on what should be understood as terrorism. Consequently the Court does not have jurisdiction over international terrorism. There is therefore no standing, permanent international body with criminal jurisdiction over individuals accused of terrorist acts, although such acts may in extreme case fall within the rubric of crime against humanity. The various instruments and international directives dedicated to the eradication and suppression of terrorism have not resolved the impasse of its definition; nor is there any ‘unified’ international law approach to combating terrorism. / Dissertation (LLM)--University of Pretoria, 2011. / Public Law / unrestricted

Du fait des particularismes inhérents à l’ordre juridique international, les contours et le contenu de la justice internationale diffèrent de ceux de la justice interne. Ils répondent à des forces directrices variables qui déterminent la conception même des juridictions internationales et de la justice qu’elles sont mandatées de rendre. Ces forces sont en constante évolution, de concert avec la transformation permanente de l’ordre juridique international. Le phénomène juridictionnel international est ainsi parcouru par plusieurs dynamiques. Au travers de l’étude du cas de la Cour pénale internationale, institution internationale clivante, l’ambition essentielle de cette étude est double. D’une part, il s’agit de démontrer la grande diversité de fonctions judiciaires pénales internationales, dont l’existence même nourrit de sérieux désaccords, tant au sein de la doctrine qu’auprès du personnel de la Cour et des conseillers juridiques des États. Il est donc nécessaire de partir à la recherche et d’examiner les éléments par lesquels la Cour exerce ses fonctions judiciaires afin de répondre au besoin de déterminer, de critiquer et d’ordonner les fonctions judiciaires pénales internationales. La thèse prend position sur chacune d’entre elles. D’autre part, l’analyse vise à exposer l’existence d’une métamorphose de la justice pénale internationale. Il faut pour cela mettre en lumière les dynamiques d’extension et de développement des fonctions judiciaires pénales internationales et, ainsi, lever le voile sur une dynamique plus générale d’enrichissement de la justice internationale. / The progressive legalization of the international society has generated a similar fundamental issue: the implementation of the international law by international courts and tribunals. A slow and relentless judicialisation of international relations has been observed, to the point that there are different providers of the same international judicial function, competent on a large majority of areas of international law.Because of peculiarities inherent to the international legal order, the outlines and content of international justice are different from those of the internal justice. They respond to varying driving forces which determine the conception of international courts and the notion of justice that they are mandated to render. These forces are constantly changing, along with the ongoing transformation of the international legal order. Indeed, the international judicial phenomenon is subject to several dynamics. Through the case study of the International Criminal Court, the essential aim of this study is twofold. First, it is to demonstrate the great diversification of international criminal judicial functions. Some of them crystallize serious disagreements, within the doctrine as to the staff of the Court and Legal Advisors to States. It is therefore necessary to research and examine the elements by which the Court exercises its various judicial functions. The thesis takes a position on each of them. On the other hand, the analysis aims to expose the existence of a metamorphosis of international criminal justice. This requires highlighting two dynamics: the expansion and the development of the international criminal judicial function, and thus unveiling a general dynamic of enrichment of international justice.

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