No description available.

Magister Philosophiae - MPhil

Univ., Diss.--Frankfurt am Main, 2004. / Literaturverz. S. 169 - 187.

This thesis examines why courts in the United States of America (US), India and South Africa refer to foreign law in death penalty cases. To gain an understanding of what drives the apex courts of the US, India and South Africa to cite foreign law when considering domestic death penalty issues, this thesis proposes a three-part matrix to both assess the relevant case law and to analyse the academic literature on cross-citation. Firstly, it will be demonstrated that judges in national courts cross-cite comparative law out of a primary interest in constitutional interpretation. Cross-citation is used in this manner to assist judges in their domestic interpretative tasks. Secondly, it will be illustrated how courts that engage in the citation of foreign law also seek guidance from other jurisdictions as to the content of shared values, such as what type of punishment does not fundamentally and unlawfully violate the right to human dignity. Finally, this thesis assesses to what degree courts from the three selected jurisdictions are additionally referencing or applying a customary international law norm when citing foreign sources. The argument is made that the domestic courts under examination engage with comparative law in the context of a broader transnational normative project, taking the international human rights framework that developed after the Second World War as a key reference point. In doing so, this thesis argues that these courts are at times recognising and developing emerging customary norms, and at other times giving effect to and enforcing applicable international human rights law.

This Thesis deals with the Immunities of State officials, which arise under International law, from foreign criminal jurisdiction. The first goal of this thesis is to determine whether, and if so, under which conditions and in which cases can one sovereign State exercise its criminal jurisdiction over an official of another sovereign State. The second goal, closely attached to the first finding, is to determine whether, and if so, under which conditions and in which cases would such officials be protected and covered by the immunity and in which cases such immunity applies. The main task of this thesis is to analyse the current state of the application of immunities of State officials within the foreign criminal jurisdiction. These immunities are with regard to their different purpose and functions recognized in two diverse types - immunity ratione personae and immunity ratione materiae. The first chapter put emphasis on the criminal jurisdiction of foreign State in general and on its extraterritorial forms in particular. The exercise of such jurisdiction in some cases enables to prosecute and punish an official of a foreign State, who happens to be a criminal. The second chapter focuses on the concept of individual criminal responsibility and possible punishment of the criminal. The third chapter...

Magister Philosophiae - MPhil / South Africa

This thesis examines the argument that the Republic of Korea-United States Status of Forces Agreement (ROK-U.S. SOFA) affords greater immunities and protections to U.S. service personnel than does the Japan-U.S. SOFA. One significant source of tension for Korean-American relations over the years has been the belief of many Koreans that Japan is given greater authority to prosecute SOFA incidents because A) the Japan-U.S. SOFA is written to Japan's advantage and B) the United States unfairly favors Japan in the application of SOFA Criminal Jurisdiction. This thesis will test the accuracy of those beliefs. It will do this by first comparing the formal provisions in the SOFAs with the two countries. It will then compare their application in high-profile SOFA-related crimes and accidents over the past two decades both in South Korea and Japan to identify any possible pattern of inequity. By comparing the language of both SOFAs today with examples of how the United States has applied that language, this thesis finds that the language and application SOFA Criminal Jurisdiction provisions have changed to favor Korea today compared to Japan. This thesis also finds that the application in both countries has changed to give more deference to Host countries. / Master of Arts

Text in English / The study aims to investigate criminal jurisdiction of the visiting SADC armed forces during peace time focusing only on the Republic of Botswana and the Republic of South Africa. Since the adoption of the Declaration and Treaty of SADC, the armed forces of both Botswana and South Africa at times find themselves on each other’s territory. Once in each other’s territory the question of criminal jurisdiction becomes imperative. The two countries seem not to agree on the content of status of force agreements while cooperating in terms of the SADC Treaty. The contentious point is that the death sentence is still a competent sentence for certain offences under certain circumstances in terms of Botswana laws, whereas in South Africa the death sentence was declared unconstitutional. In the absence of any agreement, South African armed forces may face a death sentence while in Botswana and Botswana authorities might not be able to carry out a death sentence over their members for offences committed while in South Africa. In trying to answer the question of criminal jurisdiction while on each other’s territory during peace time, a study of the evolution of jurisdiction is undertaken. The laws of both countries are considered, especially the application and protection afforded by their respective constitutions. The approach followed by the UN in sending a peace-keeping force to conflict areas is analysed. A micro-comparison of agreements concluded by selected countries, more especially the NATO agreement, is undertaken. Treaties as a source of international law are analysed to show that rights can be extended and be limited by agreement. The study concludes by recommending that concurrent criminal jurisdiction with certain qualification seems to be the accepted norm and compromise amongst the international community, and that the two countries may consider this approach as the basis for such agreement. / Public, Constitutional, & International Law / LL.M

Text in English / The study aims to investigate criminal jurisdiction of the visiting SADC armed forces during peace time focusing only on the Republic of Botswana and the Republic of South Africa. Since the adoption of the Declaration and Treaty of SADC, the armed forces of both Botswana and South Africa at times find themselves on each other’s territory. Once in each other’s territory the question of criminal jurisdiction becomes imperative. The two countries seem not to agree on the content of status of force agreements while cooperating in terms of the SADC Treaty. The contentious point is that the death sentence is still a competent sentence for certain offences under certain circumstances in terms of Botswana laws, whereas in South Africa the death sentence was declared unconstitutional. In the absence of any agreement, South African armed forces may face a death sentence while in Botswana and Botswana authorities might not be able to carry out a death sentence over their members for offences committed while in South Africa. In trying to answer the question of criminal jurisdiction while on each other’s territory during peace time, a study of the evolution of jurisdiction is undertaken. The laws of both countries are considered, especially the application and protection afforded by their respective constitutions. The approach followed by the UN in sending a peace-keeping force to conflict areas is analysed. A micro-comparison of agreements concluded by selected countries, more especially the NATO agreement, is undertaken. Treaties as a source of international law are analysed to show that rights can be extended and be limited by agreement. The study concludes by recommending that concurrent criminal jurisdiction with certain qualification seems to be the accepted norm and compromise amongst the international community, and that the two countries may consider this approach as the basis for such agreement. / Public, Constitutional, and International Law / LL.M

Thesis (MA)--University of Stellenbosch, 2002. / ENGLISH ABSTRACT: The International Criminal Court (ICC) is an exciting new development in the international system. It is not without its detractors, however, amongst others the United States. The fact that the United States takes a strong stance against the ICC creates uncertainty in the international system. This uncertainty is linked to the role of the United States as the only remaining superpower in this system. The main concern of the United States about the ICC is that an American might be brought before the court in terms of politically motivated charges. To illustrate this concern, the United States offers five basic arguments. These five are condensed into three arguments that form the main body of this thesis. They are the questions related to the jurisdiction of the ICC, the role of the United Nations Security Council in the functioning of the ICC, and the influence that the United States constitution might have on the ICC. Close attention is also paid to the political implications of the stance taken by the United States, both in terms of the specific arguments, and in general. The different arguments are tested against certain criteria, which include the stipulations of the ICC Statute and other counter arguments. From these comparisons, certain evaluations can be made, from which conclusions are drawn. For various reasons, none of the arguments put forward have merit when tested against the stipulations of the ICC Statute. What this implies is that the United States does not have real evidence to back its main concern about the ICC. Even though the possibility exists that an American could be charged before the court, there are sufficient safeguards to protect such a person from actually appearing before the court. The very real political implication then becomes that the United States is undermining its position and relative power in the international system by taking such a unilateral st / AFRIKAANSE OPSOMMING: Die Internasionale Kriminele Hof (IKH) is 'n opwindende ontwikkeling in die internasionale sisteem. Dit is egter nie sonder opponente nie, wat onder andere die Verenigte State van Amerika insluit. Die feit dat Amerika so sterk standpunt teen die hof inneem, skep onsekerheid in die internasionale sisteem. Die onsekerheid hou verband met Amerika se rol as die enigste oorblywende supermoontheid binne die sisteem. Amerika se hoof besorgdheid met die IKH is dat 'n Amerikaner dalk in terme van polities-gemotiveerde aanklagte voor die hof gedaag sal word. Hierdie besorgdheid word geïllustreer deur vyf basiese argumente wat geopper word. Hierdie argumente word in drie spesifieke argumente wat die basis van die tesis vorm, gefokus. Die argumente is die vrae in terms van die jurisdiksie van die IKH, die rol van die Veiligheidsraad van die Verenigde Nasies in die funksionering van die IKH, en die invloed wat die Amerikaanse grondwet op die IKH het. Daar word ook gekyk na die politieke implikasies van die Amerikaanse standpunt, beide in terme van die spesifieke argumente en in die algemeen. Die verskillende argumente word teen sekere kriteria getoets, wat die stipulasies van die IKH Statuut en ander teenargumente behels. Vanaf hierdie vergelykings kan evaluerings gedoen word, waarvan daar gevolgtrekkings gemaak word. Vir verskeie redes het nie een van die spesifieke argumente meriete as dit teen die bepalings van die IKH Statuut getoets word nie. Dit impliseer dat Amerika nie werklik bewyse vir hul hoof besorgdheid met betrekking tot die IKH het nie. Selfs al is die moontlikheid daar dat 'n Amerikaner wel voor die hof gedaag kan word, is daar voldoende waarborge om so persoon teen 'n verskyning voor die hof te beskerm. Die werklike politieke implikasie is nou dat Amerika sy posisie en relatiewe mag in die internasionale sisteem met sy eensydige standpunt teen die IKH ondermyn. Hierdie punt kan ook verdere uitgebreide implikasies hê.