Thesis (D.Jur.Sc.)--University of Melbourne, Faculty of Law, 1999. / Includes bibliographical references (p. 309-321). Also available online at the University of Melbourne ePrint Repository.

Thesis (Ph. D.)--Ohio State University, 2009. / Title from first page of PDF file. Includes vita. Includes bibliographical references (p. 241-271).

In international criminal law (ICL), legal meaning has been developed substantially through the judgments of international courts. Compared to some of their prosecutorial decisions, however, the way in which international judges have interpreted legal provisions has remained relatively uncontested. This study uses practice theory as a particularly fruitful lens through which to study the politics of legal interpretation. It analyses the conditions under which the creation of a comparatively uncontested judicial space became possible as an interplay between political commitments and the professional assumptions of ICL experts. The study argues that international criminal courts - unlike hybrid courts - have been accorded a particularly high degree of interpretive authority through what will be called the 'practice of privileged precedent'. It traces how this interpretive practice has been shared across institutional settings within a broader interpretive community, including by government officials and civil society representatives. Through this research, this thesis emphasises the relevance of legal interpretation for IR's understanding of international law and international courts. Drawing on legal theory, it also addresses one of the key challenges of IR's practice turn: its capacity to account for the creative potential of international practices. Methodologically, the thesis combines qualitative and quantitative forms of content analysis, elite interviews, and legal interpretive methods. It is based on an examination of over 100 judgments of international and hybrid criminal courts interpreting the crime of genocide and the law of war crimes, including judicial decisions delivered by the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). This analysis is supplemented by 28 elite interviews with judges and legal experts at international criminal courts, staff at civil society organisations, and government officials working for the British and German foreign offices.

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.

Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.

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.

Crime of Aggression under the Rome Statute of ICC Abstract The jurisdiction of the International Criminal Court over the Crime of Aggression, which has been defined at the Review Conference in Kampala, 2010, will be activated on 17th of July 2018. This paper is summarizing more than seventy years of continuing development of a definition of the Crime of Aggression which has started after the Second World War during so-called Nurnberg Trials (a forerunner of the Crime of Aggression - Crimes Against Peace have been tried during these trials) and which will be, at least for now, completed upon the activation of the jurisdiction of the International Criminal Court and upon a completion of the Rome Statute. This paper deals not only with the history of the Crime of Aggression but also with its position as a crime under the international law with a connection to other crimes which can be prosecuted before the International Criminal Court. Furthermore, it analyses the main elements of the crime with a focus on difficulties which can potentially come up once they are used in practice. A special part of this paper is focused on jurisdiction of the International Criminal Court over the Crime of Aggression, which has not quite met expectations from international society, as it seems that in case of state referral or...

Principle of complementarity in the Rome Statute The thesis provides a reader with analysis of non/operation of principle of complementarity in practice of the International Criminal Court. The principle of complementarity concerns rules governing a relationship between national courts and the ICC in the context of exercise of jurisdiction over the crimes under international law covered by the Rome Statute. From the beginning, the principle of complementarity has been considered as a cornerstone of the Rome Statute and has been often contrasted with principle of primacy enjoyed by the International Criminal Tribunal for Former Yugoslavia and International Criminal Tribunal for Rwanda. During the adoption of the Rome Statute, both the states and researches expected that thanks to complementarity the ICC would act only as a court of a last resort and would exercise its jurisdiction only if states endowed with jurisdiction would be unwilling or unable to investigate or prosecute those responsible for international crimes in jurisdiction of the ICC. The amount of emphasis put on unwillingness or inability of states to investigate and prosecute should have guaranteed a balance between a protection of state sovereignty and effective and credible operation of the International Criminal Court. The...

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.