Magister Legum - LLM / The Palestinian government made an ad hoc declaration accepting the jurisdiction of the International Criminal Court in 2009. Three years later, the Office of the Prosecutor of the International Criminal Court rejected the declaration. It decided that it is not within the competence of the Office of the Prosecutor, but up to the United Nations Secretary General or the Assembly of States Parties, to determine the Statehood of Palestine. This research paper analyses the 2009 Palestinian ad hoc declaration accepting the jurisdiction of the International Criminal Court and the decision of the Office of the Prosecutor. It critically examines the legal basis of the Palestinian ad hoc declaration, the Procedure followed by the Prosecutor and the Statehood issue of Palestine. The study concludes that although there are enough supporting evidences to hold the Palestinian ad hoc declaration acceptable, the approach adopted and the conclusion reached by the Prosecutor are highly questionable in light of the Rome Statute and Conventional law.

Submitted by Gisely Teixeira (gisely.teixeira@uniceub.br) on 2016-11-29T17:46:29Z No. of bitstreams: 1 60000221.pdf: 2396470 bytes, checksum: e1d54122d12a98684cd9d874a995028f (MD5) / Approved for entry into archive by Rayanne Silva (rayanne.silva@uniceub.br) on 2016-12-12T22:59:38Z (GMT) No. of bitstreams: 1 60000221.pdf: 2396470 bytes, checksum: e1d54122d12a98684cd9d874a995028f (MD5) / Made available in DSpace on 2016-12-12T22:59:38Z (GMT). No. of bitstreams: 1 60000221.pdf: 2396470 bytes, checksum: e1d54122d12a98684cd9d874a995028f (MD5) Previous issue date: 2005 / O Tribunal Penal Internacional realiza uma antiga aspiração da comunidade internacional por uma justiça internacional independente e imparcial, com a competência de responsabilizar criminalmente os indivíduos responsáveis pelas violações mais graves dos direitos humanos. Desde a ratificação do seu Estatuto pelo Brasil, em 20 de junho de 2002, surgiram inúmeras críticas quanto à sua compatibilidade com a Constituição brasileira. Neste trabalho, são apresentados os antecedentes filosóficos, históricos e as dificuldades de implementação do Tribunal bem como as suas principais características, como composição, os crimes de sua competência e as penalidades aplicáveis, avaliando item a item a sua constitucionalidade.

Doctor Legum - LLD / The main contributor of situations before the International Criminal Court (hereinafter ICC) has been state parties that have referred situations on their own territory to the ICC through “self-referral”. This study examines the concept of self-referral tracing the history of voluntary deferral by states of their jurisdiction over international crimes up to the enactment of the Rome Statute. The study finds that states were historically reluctant to have international crimes committed on their territory handled by other bodies or states. The self-referrals under the ICC regime are therefore a novelty in international criminal law. The legality of the act of self-referral under the Rome Statute is also examined and it is concluded that self-referrals are provided for within the Statute, although their legality has been questioned. The study establishes that self-referrals have seen unprecedented cooperation by territorial states but have also been selective in nature, targeting only non-state actors (rebel groups) .The study further compares the ICC’s handling of two other situations (Kenya and Darfur) which were triggered by antagonistic proprio motu and UN Security Council referrals respectively. The ultimate collapse of cases arising out of the Kenyan situation plus the suspension of investigations in Darfur due to non-cooperation is significant when compared with the relative successes registered with self-referred situations. The study concludes that whereas self-referrals may involve concessions to the territorial state like non-prosecution of state actors, this is a necessary evil to ensure successful investigations and prosecutions of international crimes. I recommend at the end of the study that in order to shield the office of the ICC Prosecutor from the diplomacy, dirty international politics and compromises at play in securing referrals as well as cooperation during the entire prosecution process, there should be a separate organ of the ICC handling investigations and interactions with states.

Magister Legum - LLM / This research analyzes Truth Justice and Reconciliation Mechanisms and Amnesties in the light of the Rome Statute to the International Criminal Court (ICC). The research looks strictly into the legal terms of the Rome Statute in order to see if their interpretation indicates that the Court is meant to ‘complement1’ such forms of justice mechanisms, especially when they are accompanied by amnesties. / South Africa

Magister Legum - LLM / By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against umanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action was taken, victims of the crimes hardly had a ‘say’ in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring victims participation.Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court.1 The criticism has come from scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses'ability to tell their stories at these tribunals thereby resulting in a limited, and sometimes inaccurate, record of victims' experience. / South Africa

Magister Legum - LLM / The study attempts to identify the concrete mechanisms inherent in the co-operation regime of the ICC in relation to the arrest and surrender of suspects. By doing so, it attempts to contribute to a better understanding of the procedural mechanisms pertinent to the question of arrest and surrender, thereby augmenting the emerging body of international literature focusing on this issue. Moreover, by examining real cases will identify practical deviations and suggests measures that need to be considered to remedy the problem. It is important that the procedures are clarified and followed properly. Otherwise, the ICC will lose credibility internationally, thus undermining the purpose of its creation, which was to combat impunity and to contribute towards achieving justice, peace and well being worldwide.

Magister Legum - LLM / The International Criminal Court (hereafter ‘ICC’ or ‘the Court’), in its fight against impunity is slated to put on trial, in conformity with Article 27 of the Rome Statute1, an incumbent Head of State and his Deputy for crimes under Article 7 of the Statute. The President and Deputy President of the Republic of Kenya are currently accused of crimes against humanity before the ICC, for acts of violence perpetrated in the wake of the December 2007 presidential and parliamentary elections. This research is a study of the ICC’s conceptual framework and positive implementation of its mandate with respect to prosecuting Kenya’s top leaders. By critically evaluating the cases against President Kenyatta and Deputy President Ruto, this research aims to assess the feasibility of such high-profile cases which have, in part, contributed to the hostility surrounding the Court in its fight against impunity. To this end, the factual and legal background, as well as the political context of the cases will be discussed.

Magister Legum - LLM / This research paper examines whether the International Criminal Court has the competence to compel the appearance of witnesses before it, and if the States Parties to the Rome Statute have an obligation to serve and enforce a witness summons issued by the Court. In December 2013 the Office of the Prosecutor requested the International Criminal Court to summon witnesses and ascribed to the Court the power to order some States Parties to enforce witness summonses. The defence counsel in the particular case and the Kenyan government, the requested State Party, opposed the request. In April 2014 Trial Chamber V (A) of the International Criminal Court delivered a decision on that matter in which it found that it had indeed the power to compel witnesses and to order Kenya to enforce the summonses. The decision was confirmed on appeal in October 2014. This paper analyses the issue with reference to the decision of the Trial Chamber, the judgement of the Appeals Chamber, and the assertions by the parties in the present case. It also introduces other approaches on how to deal with this issue. The paper essentially analyses the text of the Rome Statute, the history of its drafting, and compares the enabling laws and jurisdictional competence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone with regard to the theme under discussion. The paper furthermore analyses how the domestic laws of some states deal with the matter. Finally it examines the measures that the ICC can implement to enforce its orders.

Magister Legum - LLM / The new Kenyan constitution has introduced an immediate monist approach of implementing international legal standards. Accordingly, the transformation from dual to monism will necessitate a discussion of theories of incorporation of international instruments into national laws. This will set the basis of what method Kenya should follow. This paper attempts to address potential procedural problems with implementing the Rome Statute in a new monist Kenya and will argue that as a precautionary measure during the country’s transition any deviation, by the court, from national law will require articulation and justification under an international framework. It will include a review of the Kenyan International Crimes Act 2003 (ICA) and its adoption into the domestic law of Kenya. It will also include examination of previous situations where domestic courts have applied international law standards in domestic trials before and after the monist Constitution of 2010. This paper aims at assessing the key challenges to the effective implementation of the Rome Statute in Kenya both objectively and substantively. It examines the challenges facing the Kenyan courts in relation to the exercise of universal jurisdiction and the criminalization of international crimes. It will seek to point out the weaknesses and conflict between the Kenyan constitution, The International Crimes Act and the Rome Statute. The ICA was silent on some aspects of the Rome Statute and the paper will attempt to discuss these issues and what they portend in the implementation of the Rome statute in monism. It will also discuss the effect of the new constitution on the practical operation of the Rome Statue. The operational capacity of institutions mandated with practical implementation of the Rome Statute will be examined. It will further seek to ascertain whether the laws and policies reflect Kenya’s commitment to international criminal justice. By way of conclusion, the paper will create a possible inventory of issues, which might arise in Kenya’s prosecution of International crimes under the Rome Statute, and suggestions on how such issues could best be addressed.

Magister Legum - LLM