In this thesis, two questions are analysed: (1) why have National Human Rights Institutions (NHRIs) become so widely disseminated among contemporary states? And, (2) what explains the variable institutionalisation of NHRIs once activated? The thesis first traces the diffusion of NHRIs across political regimes in general, with particular attention to unstable democratic regimes. It argues that NHRI creation can be attributed to three principal diffusion mechanisms: coercion, acculturation, and persuasion. These three explanatory models, however, lack precision. Linking each mechanism to recent processes of diffusion in Latin America, the analysis identifies how the diffusion of an Iberian variant to the generic NHRI category - the Defensorfa del Pueblo - corresponds to three intermediate categories: compulsion, material inducement and framing of ideas. The initial political circumstance of Defensoria creation in Latin America, in turn, has significant implications for their institutionalisation. A domestic level of analysis is necessary to explain the institutionalisation of Defensorias operating in the democratic regimes of Latin America. The standard explanation correlates performance with structural form. While this thesis recognises the development of formal design principles is important in explaining institutionalisation, it adds a major qualification. It shows that the informal dimension of Defensorias' relations with organised state and social actors and rules of access across accountability arenas is often decisive. A typological framework is generated to assess the impact of these two dimensions on Defensorias when formal rules are enforced in a variable manner and tend to lack stability over time. This comparative analysis highlights the accountability gap which these institutions attempt, importantly, to address. By explaining how Defensorias actually work, including when and why they matter, this thesis goes beyond narrow institutionalism as suggested by the political accountability literature.

LL.D. / Millions of human lives have been affected by gross human rights violations since 1945. Genocide and crimes against humanity have been perpetrated repeatedly against civilians despite the vow after the Holocaust that such atrocities would “never again” occur. The Holocaust acts were not criminalised as “genocide” in the London Charter, but as “persecutions on political, racial or religious grounds” under the broader international crime of “crimes against humanity”. “Genocide” was criminalised on 9 December 1948 by the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide by the United Nations General Assembly. Two main obligations were imposed on signatory states by Article I of the Genocide Convention, namely to prevent the commission of the international crime of genocide, and the obligation to punish the perpetrators of such a crime. Both genocide and crimes against humanity form part of the “most serious crimes of concern to the international community as a whole”, which are also gross human rights violations. It is of interest to all states of the international community to prevent the commission of these gross human rights violations and to prosecute perpetrators. The prohibition of the international crimes of genocide and crimes against humanity is erga omnes in nature. The research objective of this doctoral thesis is to analyse the causes for the repeated failure of the international community to fulfil the erga omnes obligation to prevent and prosecute gross human rights violations. This endeavour is furthermore aimed at formulating recommendations that will enhance future compliance with the erga omnes obligation in accordance with the international legal developments that will form the subject matter of the thesis. The thesis consists of five parts. Part 1 is an introduction in which the research objective and aims of the thesis are explained and demarcated, as well as the issues focused upon. Core legal concepts, terms and notions explained in Part 1 include “gross human rightsviolations”, “erga omnes obligation”, “jus cogens norms”, “customary international law”, “states upon whom the erga omnes obligations to prevent and prosecute gross human rights violations are imposed”, “the obligation to prevent”, “the obligation to prosecute”, “state responsibility”, “individual criminal responsibility”, “state immunity”, and various other terms. Part 1 further explains the research methodology followed in the thesis and contains a brief overview of the parts and chapters.

The adoption of the 1996 Constitution in recognition of the historic imbalances that South Africa inherited from its past, affirms the commitment to the promotion of human rights including the right to equality. The emphasis on the right to equality in the Constitution and other related laws discussed in the study represents a guarantee for both men and women the right to equal treatment and benefit of the law. The point of departure is based on the premise that views the law as an instrument that has the potential to effect social change. The primary purpose is to determine various factors that are an impediment to the significance of the law for the promotion of the right to gender equality. The objective is to establish with sufficient certainty the substantive conception of the right to gender equality in post-apartheid South Africa. This dissertation examines and provides a brief overview of the development and the intersection of the principles of non-discrimination at the international and regional spheres and their influence in broadening the scope for enforcement of gender equality in South Africa. It provides a literature review and an analysis of the equality jurisprudence of South Africa’s Constitutional Court and its influence to the lowest structures of the judiciary in promoting the right to gender equality. This undertaking is reinforced by the primary purpose in this study of examining various factors that are an impediment to the promotion of the right to gender equality. It discovers that the establishment of a “just society” is difficult where the significance of the law is affected by the lack of legal knowledge and other related factors identified in the study. It establishes that the promotion of the right to gender equality is a gradual process that should not be undertaken overnight but on a continuous basis. It can be drawn from the findings in this study that the law “alone” is limited in its application in addressing socio-legal problems. Despite the limitation, the use of law is not a goal that should be discarded as it lays the framework for the determination of the significance of legal measures for social change.

The adoption of the 1996 Constitution in recognition of the historic imbalances that South Africa inherited from its past, affirms the commitment to the promotion of human rights including the right to equality. The emphasis on the right to equality in the Constitution and other related laws discussed in the study represents a guarantee for both men and women the right to equal treatment and benefit of the law. The point of departure is based on the premise that views the law as an instrument that has the potential to effect social change. The primary purpose is to determine various factors that are an impediment to the significance of the law for the promotion of the right to gender equality. The objective is to establish with sufficient certainty the substantive conception of the right to gender equality in post-apartheid South Africa. This dissertation examines and provides a brief overview of the development and the intersection of the principles of non-discrimination at the international and regional spheres and their influence in broadening the scope for enforcement of gender equality in South Africa. It provides a literature review and an analysis of the equality jurisprudence of South Africa’s Constitutional Court and its influence to the lowest structures of the judiciary in promoting the right to gender equality. This undertaking is reinforced by the primary purpose in this study of examining various factors that are an impediment to the promotion of the right to gender equality. It discovers that the establishment of a “just society” is difficult where the significance of the law is affected by the lack of legal knowledge and other related factors identified in the study. It establishes that the promotion of the right to gender equality is a gradual process that should not be undertaken overnight but on a continuous basis. It can be drawn from the findings in this study that the law “alone” is limited in its application in addressing socio-legal problems. Despite the limitation, the use of law is not a goal that should be discarded as it lays the framework for the determination of the significance of legal measures for social change.

The thesis offers new paradigms for advancing socio-economic rights in Africa. Many States Parties to human rights instruments have failed to promote the common welfare of their citizens partly because of the justiciability debate, which continues to complicate intellectual and practical efforts at advancing socio-economic rights. The debate also prevents the normative development of these rights through adjudication. Furthermore, traditional human rights theory and practice have been state-centric, with non-state actors largely ignored in the identification, formulation, and implementation of human rights norms. Yet, the involvement of non-state entities in international arena has limited states' autonomies considerably, with serious implications for human rights. Transnational Corporations (TNCs) have capacities to foster economic well-being, development, tenchnological improvement, and wealth, but they also often cause deleterious human rights impacts through thei employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities. The thesis argues that socio-economic rights are normative and justiciable. It argues that traditional approaches are no longer sufficient to secure human rights and calls for a dismantatling of some structures erected by doctrinal systems; for realignment of relationships among social institutions; and for integrated bundles of fundamental interests that harness benefits of human rights norms and widen the landscape to commit both formal and informal regimes. Fashioning out a new paradigm for advancement of socio-economic rights requires addressing state capacity. It requires an integrative and global interpretive framework. It requires, finally, a new paradigm to commit non-state actors in Africa. The illustrative chapter uses the rights to work and to social security as templates for some prescriptions towards reaslising socio-economic rights in Africa. / Jurisprudence / LL.D.

Thesis (LLM)--Stellenbosch University, 2013. / Bibliography / ENGLISH ABSTRACT: This thesis is a reflection of the provisions of the Rome Statute in relation to the most fundamental condition for the effective functioning of the Court – the cooperation of states. It broadly examines the challenges experienced by the Court with respect to application of Part IX such as whether non-State Parties to the Rome Statute can, notwithstanding their right not to be party, be compelled to cooperate with the Court owing to the customary international law obligation for all States to repress, find and punish persons alleged to have committed the crimes within the jurisdiction of the Court (war crimes, crimes against humanity, and genocide). This is particularly challenging where such persons are nationals of non-States Parties. The various meanings of international cooperation in criminal matters is discussed with reference to and distinguished from the cooperation regime of the International Criminal Tribunals for Rwanda and the former Yugoslavia. For States Parties to the Rome Statute, the thesis evaluates the measure of their inability or unwillingness to genuinely prosecute persons alleged to have committed crimes within the jurisdiction of the Court within the context of the principle of complementarity. It seeks to address, where such inability or unwillingness has been determined by the Court, how effective the cooperation between the States Parties and the Court could best serve the interests of justice. The thesis answers the question on what extent the principle of complementarity influences the cooperation of States with the Court, whether or not these States are party to the Rome Statute. The concept of positive complementarity that establishes a measure of cooperation between the Court and the national criminal jurisdictions is further explored in the context of the Court’s capacity to strengthen local ownership of the enforcement of international criminal justice. A nuanced discussion on the practice of the Court with respect to the right of persons before the Court is developed. The rights of an accused in different phases of Court proceedings and the rights of victims and affected communities of crimes within the Court’s jurisdiction are considered at length and in the light of recently-established principles regulating the Court’s treatment of these individuals. These persons are key interlocutors in the international criminal justice system and have shifted the traditional focus of international law predominantly from states to individuals and bring about a different kind of relationship between States as a collective and their treatment of these individuals arising from obligations to the Rome Statute. Finally the thesis interrogates the enforcement mechanisms under the Rome Statute. Unlike States, the Court does not have an enforcement entity such as a Police Force that would arrest persons accused of committing crimes within its jurisdiction, conduct searches and seizures or compel witnesses to appear before the Court. Yet, the Court must critically assess its practice of enforcing sentences that it imposes on convicted persons and in its contribution to restorative justice, the enforcement of reparations orders in collaboration with other Rome Statute entities such as the Trust Fund for Victims. / AFRIKAANSE OPSOMMING: Hierdie tesis is 'n weerspieëling van die bepalings van die Statuut van Rome in verhouding tot die mees fundamentele voorwaarde vir die effektiewe funksionering van die Hof - die samewerking van State. Dit ondersoek breedweg die uitdagings wat deur die Hof ervaar word met betrekking tot die toepassing van Deel IX soos byvoorbeeld of State wat nie partye is tot die Statuut van Rome, nieteenstaande hul reg om nie deel te wees nie, verplig kan word om saam te werk met die Hof weens die internasionale gewoontereg verpligting om alle persone wat na bewering misdade gepleeg het binne die jurisdiksie van die Hof (oorlogsmisdade, misdade teen die mensdom en volksmoord) te verhinder, vind en straf. Dit is veral uitdagend waar sodanige persone burgers is van State wat nie partye is nie. Die verskillende betekenisse van die internasionale samewerking in kriminele sake word bespreek met verwysing na, en onderskei van, die samewerkende stelsel van die Internasionale Kriminele Tribunale vir Rwanda en die voormalige Joego-Slawië. Vir State wat partye is tot die Statuut van Rome, evalueer die tesis - in die konteks van die beginsel van komplementariteit - die mate van hul onvermoë, of ongewilligheid om werklik persone te vervolg wat na bewering misdade gepleeg het binne die jurisdiksie van die Hof. Dit poog om aan te spreek, waar so 'n onvermoë of ongewilligheid bepaal is deur die Hof, hoe effektiewe samewerking tussen State wat partye is en die Hof, die belange van geregtigheid die beste kan dien. Die tesis beantwoord die vraag op watter mate die beginsel van komplementariteit die samewerking van die State met die Hof beïnvloed, ongeag of hierdie State partye is tot die Statuut van Rome. Die konsep van positiewe komplementariteit wat samewerking vestig tussen die Hof en die nasionale jurisdiksies aangaande kriminele sake word verder ondersoek in die konteks van die Hof se vermoë om plaaslike eienaarskap in die handhawing van die internasionale kriminele regstelsel te versterk. 'n Genuanseerde bespreking op die praktyk van die Hof met betrekking tot die reg van persone voor die Hof word ontwikkel. Die regte van 'n beskuldigde in die verskillende fases van die hof verrigtinge en die regte van slagoffers en geaffekteerde gemeenskappe van misdade binne die hof se jurisdiksie word in diepte bespreek in die lig van die onlangs gevestigde beginsels wat die Hof se behandeling van hierdie individue reguleer. Hierdie persone is sleutel gespreksgenote in die internasionale kriminele regstelsel en het die tradisionele fokus verskuif van die internasionale reg van State na individue, en bring oor 'n ander soort verhouding tussen State as 'n kollektiewe en hulle behandeling van hierdie individue as gevolg van hul verpligtinge aan die Statuut van Rome. Ten slotte bevraagteken die tesis die handhawings meganismes onder die Statuut van Rome. In teenstelling met State, het die Hof nie 'n handhawing entiteit soos 'n Polisiemag wat persone kon arresteer wat beskuldig word van misdade binne sy jurisdiksie, deursoek en beslagleggings uitvoer of persone dwing om as getuies te verskyn voor die Hof nie. Tog, moet die Hof sy praktyk van uitvoering van vonnisse wat dit oplê op veroordeelde persone en in sy bydrae tot herstellende geregtigheid die handhawing van herstelling in samewerking met ander Statuut van Rome entiteite soos die Trust Fonds vir Slagoffers krities assesseer.

The thesis offers new paradigms for advancing socio-economic rights in Africa. Many States Parties to human rights instruments have failed to promote the common welfare of their citizens partly because of the justiciability debate, which continues to complicate intellectual and practical efforts at advancing socio-economic rights. The debate also prevents the normative development of these rights through adjudication. Furthermore, traditional human rights theory and practice have been state-centric, with non-state actors largely ignored in the identification, formulation, and implementation of human rights norms. Yet, the involvement of non-state entities in international arena has limited states' autonomies considerably, with serious implications for human rights. Transnational Corporations (TNCs) have capacities to foster economic well-being, development, tenchnological improvement, and wealth, but they also often cause deleterious human rights impacts through thei employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities. The thesis argues that socio-economic rights are normative and justiciable. It argues that traditional approaches are no longer sufficient to secure human rights and calls for a dismantatling of some structures erected by doctrinal systems; for realignment of relationships among social institutions; and for integrated bundles of fundamental interests that harness benefits of human rights norms and widen the landscape to commit both formal and informal regimes. Fashioning out a new paradigm for advancement of socio-economic rights requires addressing state capacity. It requires an integrative and global interpretive framework. It requires, finally, a new paradigm to commit non-state actors in Africa. The illustrative chapter uses the rights to work and to social security as templates for some prescriptions towards reaslising socio-economic rights in Africa. / Jurisprudence / LL.D.

Every human being deserves to have their rights respected all the times. Not only does the correctional system have the responsibility to rehabilitate offenders before they are released to the community but also to respect their rights throughout the rehabilitation process.. In this research the extent in which human rights affect the process of rehabilitation was outlined. This was achieved by analyzing the provisions of major human rights instruments, both internationally and nationally as well as standards required for the treatment of offenders. In addition various rehabilitation programmes were also discussed. The findings of the research indicated that South Africa has achieved a lot when it comes to the recognition of human rights. From the research it was discovered that indeed offenders' rights have an impact on the rehabilitation process. Based on these and other findings recommendations were made. / Criminal Justice / M. Tech. (Correctional Services Managemnent)

Every human being deserves to have their rights respected all the times. Not only does the correctional system have the responsibility to rehabilitate offenders before they are released to the community but also to respect their rights throughout the rehabilitation process.. In this research the extent in which human rights affect the process of rehabilitation was outlined. This was achieved by analyzing the provisions of major human rights instruments, both internationally and nationally as well as standards required for the treatment of offenders. In addition various rehabilitation programmes were also discussed. The findings of the research indicated that South Africa has achieved a lot when it comes to the recognition of human rights. From the research it was discovered that indeed offenders' rights have an impact on the rehabilitation process. Based on these and other findings recommendations were made. / Criminal Justice / M. Tech. (Correctional Services Managemnent)