Magister Legum - LLM

Magister Legum - LLM / Sitting head of state immunity for crimes under international law has been a very controversial issue in recent times. On the one hand, the debate bears that personal immunity has been renounced for crimes under international law. On the other hand, the advocates of personal immunity claim that the principle of immunity is still persisting under customary International law. Although the International Criminal Court (ICC) is a treaty based court, it is able to extend its jurisdiction to non-state parties to the Rome Statute through a referral by the United Nations Security Council. Lacking its own enforcement body the ICC relies on the cooperation of other states for arrest and surrender of those it indicts. The extension of the court's jurisdiction to non-state parties, such as the case of Sudanese President Omar Al Bashir, has led to the reluctance of state parties to the Rome Statue to effect arrest and surrender citing a 'dilemma between two conflicting obligations'. This paper analyses the legal status of personal immunity before different fora such as International tribunals, foreign domestic courts and under customary international law. It also critically examines the legal basis for the alleged conflicting obligations of state parties. The paper at the end concludes that there is no conflicting obligation for states parties to fully co-operate with the ICC and the lack of co-operation in the arrest and surrender of a sitting head of state is inconsistent with international law particularly with United Nation Charter and the Rome Statute. / German Academic Exchange Service (DAAD)

The author addresses the following objectives: (1) Examines whether a state can withdraw a case upon which an indictment has been made by the International Criminal Court (ICC) (2) Determine and elucidate on the circumstances under which a referral can be withdrawn from ICC jurisdiction. (3) Clarifies whether a referral can be withdrawn if the referring state develops mechanisms for domestic trial of relevant ICC crimes / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2008. / A Dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Dr.Atangcho Akonumbo, Faculté des Sciences Sociales et de gestion, Université Catholique d’Afrique Centrale, Yaoundé Cameroun / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM

Thesis (LLM)--University of Stellenbosch, 2002. / ENGLISH ABSTRACT: The permanent International Criminal Court (ICC) will come into operation after the 60th ratification of the Rome Statute of the International Criminal Court of 1998. The ICC will have jurisdiction over the most serious international crimes, namely war crimes, genocide and crimes against humanity. The focus of this thesis is the difficulties surrounding the admissibility of a case before the ICC. There are basically two legs to this analysis: jurisdiction and complementarity .. Jurisdiction of the ICC is analysed in historical and theoretical context. This comprises an overview of the international tribunals since the First World War, and more specifically their impact on the development of jurisdiction in international criminal law. Secondly, the thesis is examining the jurisdiction of the ICC in terms of the specific provisions of the Rome Statute. This analysis comprises a detailed analysis of all the provisions of the Rome Statute that have an impact on the exercise of the ICC's jurisdiction. The relationship between the ICC and national courts is a difficult relationship based on a compromise at the Rome Conference in 1998. The principle underlying this relationship is known as "complementarity". This : means that the ICC will only exercise its jurisdiction if a national court is "unwilling" or "unable" to exercise its jurisdiction. A detailed analysis of the different provisions of the Rome Statute, as well as some references to other international tribunals, serve to analyse the impact of complementarity on the eventual ambit of the ICC's jurisdiction. In conclusion, some suggestions regarding the admissibility of cases and the difficult relationship between the ICC and national courts are made. / AFRIKAANSE OPSOMMING: Die permanente Internasionale Strafhof (ISH) sal met sy werksaamhede begin na die 60ste ratifikasie van die Statuut van Rome van 1998. Die ISH sal jurisdiksie uitoefen oor die ernstigste internasionale misdade, tewete oorlogsmisdade, volksmoord en misdade teen die mensdom. Hierdie tesis fokus op die probleme rondom die toelaatbaarheid van 'n saak voor die ISH. Hierdie ontleding het basies twee bene: jurisdiksie en komplementariteit. Die jurisdiksie van die ISH word in historiese en teoretiese konteks ontleed. Dit behels 'n oorsig van die internasionale tribunale sedert die Eerste Wêreldoorlog, en meer spesifiek die impak wat hierdie tribunale op die ontwikkeling van jurisdiksie in die internasionale strafreg gehad het. In die tweede plek word jurisdiksie ontleed aan die hand van die spesifieke bepalings van die Statuut van Rome. Hierdie ontleding behels 'n gedetaileerde ontleding van al die bepalings van die Statuut van Rome wat 'n impak het op die uitoefening van die ISH se jurisdiksie. Die verhouding tussen die ISH en nasionale howe is 'n komplekse verhouding, gebaseer op 'n kompromie wat by die Rome Konferensie van 1998 aangegaan is. Die beginselonderliggend aan hierdie verhouding staan bekend as "komplementariteit". Dit beteken dat die ISH slegs sy jurisdiksie sal uitoefen indien 'n nasionale hof "onwillig" of "nie in staat is" om jurisdiksie uit te oefen nie. 'n Gedetaileerde ontleding van die verskillende bepalings van die Statuut van Rome, sowel as verwysings na ander internasionale tribunale, dien om die impak van komplementariteit op die omvang van die ISH se jurisdiksie, te ontleed. Ten slotte word sekere voorstelle aangaande die toelaatbaarheid van sake en die verhouding tussen die ISH en nasionale howe gemaak.

<p>Kenya&rsquo / s December 2007 Presidential elections sparked a wave of violent clashes over allegations of election rigging. The protests broke out along ethnic lines, causing greater civil unrest. There have been allegations that during these outbreaks of violence crimes against humanity were committed. This violence attracted world-wide concern and was universally condemned. Kenya is loathe to prosecute the perpetrators or those who bear the highest responsibility for the alleged commission of crimes against humanity. It has instead established a national investigatory mechanism, the Kenyan Truth, Justice and Reconciliation Commission (hereafter TJRC). This approach adopted by Kenya has been criticized for the fact that it fosters a culture of impunity. However, the Prosecutor of International Criminal Court (hereafter ICC) has used his proprio motu powers to initiate an investigation of alleged commission of crimes that fall within the jurisdiction of the Court. This research paper has analysed the reasons for the proprio motu intervention of the ICC in Kenyan situation. It also examined whether Kenya was unwilling or genuinely unable to prosecute the perpetrators of the post-election violence of 2007. Furthermore, the paper&nbsp / evaluated the provisions of the Kenyan TJRC, the major shortcomings of the Commission and the challenges it is facing in fulfilling its mandate. In conclusion the paper analysed the relationship between TJRC and ICC and re-evaluate any role that the two bodies could play in dispensing justice in Kenya. But before that, the paper laid down the factual&nbsp / background that led to the proprio motu interevention of the ICC in Kenya where a truth commission had alreday been established.<br /> <br /> &nbsp / </p>

<p>Kenya&rsquo / s December 2007 Presidential elections sparked a wave of violent clashes over allegations of election rigging. The protests broke out along ethnic lines, causing greater civil unrest. There have been allegations that during these outbreaks of violence crimes against humanity were committed. This violence attracted world-wide concern and was universally condemned. Kenya is loathe to prosecute the perpetrators or those who bear the highest responsibility for the alleged commission of crimes against humanity. It has instead established a national investigatory mechanism, the Kenyan Truth, Justice and Reconciliation Commission (hereafter TJRC). This approach adopted by Kenya has been criticized for the fact that it fosters a culture of impunity. However, the Prosecutor of International Criminal Court (hereafter ICC) has used his proprio motu powers to initiate an investigation of alleged commission of crimes that fall within the jurisdiction of the Court. This research paper has analysed the reasons for the proprio motu intervention of the ICC in Kenyan situation. It also examined whether Kenya was unwilling or genuinely unable to prosecute the perpetrators of the post-election violence of 2007. Furthermore, the paper&nbsp / evaluated the provisions of the Kenyan TJRC, the major shortcomings of the Commission and the challenges it is facing in fulfilling its mandate. In conclusion the paper analysed the relationship between TJRC and ICC and re-evaluate any role that the two bodies could play in dispensing justice in Kenya. But before that, the paper laid down the factual&nbsp / background that led to the proprio motu interevention of the ICC in Kenya where a truth commission had alreday been established.<br /> <br /> &nbsp / </p>

Magister Legum - LLM / Kenya’s December 2007 Presidential elections sparked a wave of violent clashes over allegations of election rigging. The protests broke out along ethnic lines, causing greater civil unrest. There have been allegations that during these outbreaks of violence crimes against humanity were committed. This violence attracted world-wide concern and was universally condemned. Kenya is loathe to prosecute the perpetrators or those who bear the highest responsibility for the alleged commission of crimes against humanity. It has instead established a national investigatory mechanism, the Kenyan Truth, Justice and Reconciliation Commission (hereafter TJRC). This approach adopted by Kenya has been criticized for the fact that it fosters a culture of impunity. However, the Prosecutor of International Criminal Court (hereafter ICC) has used his proprio motu powers to initiate an investigation of alleged commission of crimes that fall within the jurisdiction of the Court. This research paper has analysed the reasons for the proprio motu intervention of the ICC in Kenyan situation. It also examined whether Kenya was unwilling or genuinely unable to prosecute the perpetrators of the post-election violence of 2007. Furthermore, the paper evaluated the provisions of the Kenyan TJRC, the major shortcomings of the Commission and the challenges it is facing in fulfilling its mandate. In conclusion the paper analysed the relationship between TJRC and ICC and re-evaluate any role that the two bodies could play in dispensing justice in Kenya. But before that, the paper laid down the factual background that led to the proprio motu interevention of the ICC in Kenya where a truth commission had alreday been established. / South Africa

Magister Legum - LLM

This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.

"With the entry into force of the Rome Statute in July 2002 and the election of judges and prosecutors of the Court in 2003, there is need for states parties to the Rome Statute to enact laws to incorporate the crimes defined in the treaty. Currently, 92 states are parties to the treaty. The success of the ICC will depend not only on widespread ratification of the Rome Statute, but also on states parties' compliance with obligations under the treaty. For almost every state this will require some change in national law in accordance with existing laws and proceedings in a given legal system. The experience of most states parties to the treaty is that the Rome Statute will require some form of domestic implementing legislation, even if this is not the normal practice of the state. There is need for co-operation between the Court and state parties on the administration of justice. For the Court to function properly, the immunity of its personnel should be guaranteed and provisions in national constitutions that are incompatible with the Rome Statute should be amended to bring them in conformity with the provisions of the treaty. ... Thus far, South Africa is the only African country that has adopted an implementing legislation domesticating the Rome Statute. Other African countries such as Congo, DRC, Ghana, Nigeria and Senegal have draft bills. There is, therefore, the need for African countries that are state parties to the treaty to positiviely confront the above challnges while incorporating the provisions of the Rome Statute into national law. ... The first chapter is an introduciton. It sketches the background of the study and reviews the materials that will be used for the study. It focuses on several hypothesis and research questions that the study is set out to answer. It highlights the dearth of materials on the implementation of the Rome Statute in Africa. The second chapter analyses the ICC and the emerging international legal system. It discusses the complementarity principle of the Rome Statute and analysis the crimes under the jurisdiction of the Court. The effect of the bilateral immunity agreements signed by states parties to the Rome Statute with the United States of America is also highlighted. The third chapter deals with the ICC and indernational approaches to the implementation of the Rome Statute. This involves discussions on compatibility of the Rome Statute with national constitutions. Approaches adopted by states with regards to specific issues of implementation will also come into focus, followed by discussions on the amendment of constitutions and purposive interpretation as adopted by various states parties to the Rome Statute. The fourth chapter will discuss implications of the Rome Statute for domestic constitutions in Africa. The discussion will focus on immunity from prosecution granted to heads of state and government by constitutions, the surrender of persons to the ICC and sentencing of persons convicted by the Court with regards to their relationship in the implementation of the Rome Statute in Africa. The fifth chapter will be a comparative analysis of impelementation strategies adopted by South Africa, Nigeria and Democratic Republic of Congo (DRC). There will be an analysis of the relationship between the Rome Statute and African human right system. The last chapter is the conclusion with recommendations and arguments on the need for a comprehensive domestic implementation strategy of the Rome Statute in Africa." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2003. / Prepared under the supervision of Professor Lovell Fernandez at the Faculty of Law, University of the Western Cape / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM