According to the literal interpretation, the crime of genocide is characterized by an individualistic intent to destroy a group, unlike other international crimes where contextual elements such as the need for plan or policy, or pattern of similar acts, or collective campaign and magnitude are explicitly required as constitutive elements. This thesis, therefore, examines whether ‘contextual elements’ are constitutive elements of the crime of genocide. In particular, it will examine the evolution and the current state of the definition of genocide, to determine the extent to which an individual génocidaire is required to act within a particular genocidal context. This thesis will examine and trace the historical development of the crime of genocide from its inception as an academic concept to the attainment of an autonomous legal character as a crime. It is argued that, during this period, the concept of genocide was akin to the current definition of crime as used in the social sciences. Hence, contextual elements were tacitly perceived and considered as a constitutive part of the concept; therefore, any reference to this period is of little help in the determination of the current status of the contextual element. In addition, it is found that upon codification of the notion of genocide, deliberate efforts were made to depart from the old concept by putting the subjective side of the crime at the centre. Thus, the thesis finds, on the basis of prevailing case law, that today’s dilemma over the crime of genocide originates from the difficulty to separate the concept from its past. This has led, in turn, to the existence of a vague and unsound legal stance on the contextual elements of genocide when the definition is applied to specific cases; therefore, the legal examination of the definition has produced an inconsistent approach bordering on illegitimate law making, especially in the cases of the ad hoc tribunals, by failing to balance the interpretation requirements on the one hand and the requirements of legality and consistency on the other. The thesis also establishes that the protracted debate for inclusion of the contextual elements as legal ingredients of the crime is sustained by this inconsistency. The thesis further evaluates the contextual elements in the light of the new regime of the Rome Statute and its ‘Element of Crimes’ which explicitly require the accused to act in a ‘context of manifested pattern of similar conduct’, but analysis of this requirement reveals that this is only a jurisdictional element to limit the case flow to the International Criminal Court. This research critiques the ‘contextual elements’ and the need for them and concludes with a new case for the assessment of this context as, first, a jurisdictional element and second, necessary on two other occasions: when alleging the existence of the crime of genocide in general and in cases of liability for participation and inchoate offences.

The International Criminal Court (ICC) is a permanent court created by the Rome Statute to prosecute persons for the most grievous crimes of human rights: war crimes, genocide, and crimes against humanity. Based on the very idea that the protection of a set of universal human rights is the responsibility of the international community as a whole, the ICC today, however, finds itself uncertain about its future. Most notably, a number of non-signatory states, including traditionally major players in international politics such as the United States, China, and India, have been adamant against joining the Court because of their perception of potential indictment. When the leaders of these states seek to predict the possibility of an indictment, they have reason to believe that the current criteria for indictment used by the ICC judges are likely to lead to a situation in which national judicial independence and personal security of high-profile officials and other state actors including soldiers are unreasonably challenged. This thesis argues that, while some criteria used by the ICC judges can be inferred from previous judgements, these criteria do not constitute the sum total of the criteria for decision-making in the ICC and thus do not form an essential incentive for major outliers to join the Court. This thesis offers three solutions, focusing on the refinement of the Rome Statute, structural changes to the Court, and the elimination of the crime of aggression from the Statute.

Magister Legum - LLM / Piracy attacks off the coast of the Horn of Africa have been on the rise in the recent years. According to a report by Ocean without Borders, although no vessels were hijacked by pirates off the coast of Somalia in 2017, 8 seafarers who were captured in 2016 were still being held in captivity. So far, 545 seafarers have been subjected to piracy attacks.1 The west coast of Africa has also experienced its fair share of piracy attacks. There has been an increase in piracy attacks off the coast of West Africa, two thirds of these attacks occurred off the coast of Nigeria.2The law governing maritime piracy is founded in the United Nations Convention on the law of the sea (UNCLOS).3Article 101 of the Convention defines piracy as; (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: i. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; ii. against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). In addition to the UNCLOS, the Convention for the Suppression of Unlawful acts of Violence against the Safety of Maritime Navigation (herein after referred to as SUA Convention) also criminalises acts related to maritime piracy but which hinder the safe navigation of ships.4 The determining factor for crimes under the SUA Convention is whether the offence is a threat to the safe navigation or is likely to endanger the safe navigation of ships.5 The SUA Convention, however, differs from the UNCLOS in several aspects. First, the Convention does not require that the offence be committed for private ends. Second, the two ships requirement under Article 101 (a) of the UNCLOS is not applicable in the SUA Convention. The offences created in Article 3 of the SUA Convention imply that they may be committed by a perpetrator who is in the same ship with the victim. The SUA Convention does not provide for application of the principle of universal jurisdiction, a State can only exercise jurisdiction over the crimes if it is a party to it.6 Both the SUA Convention7 and the UNCLOS8 provide that the offence must be committed outside a State’s territorial waters. Article 4 of the SUA Convention however further limits the application of the Convention. The Convention does not apply to instances where the ship was not scheduled to navigate out of the territorial waters of the State. This limitation is not applicable under the UNCLOS.

Magister Legum - LLM / The Republic of South Sudan became independent from the Republic of Sudan on 9 July 2011. South Sudan has an area of 644, 329 km2 and a total estimated population of around 12, 6 million.1The original state of Sudan was intensely divided along ethnic, religious and ideological lines. The general population of the Republic of Sudan is mainly Sunni Muslim whereas the South Sudanese are mostly Christian, with small populations that still practice African indigenous religions.2While the Republic of Sudan is predominantly Arabic-speaking, English and over sixty local languages are spoken in South Sudan.3 The new Republic of South Sudan was born after one of the longest and most ruthless wars fought in Africa. The war between the government of Sudan and the Southerners had its roots in 1955 as resistance to “Sudanisation” began in the run-up to Sudanese independence. Provincial administration4favouring the better-educated northerners over southerners and further conflict fuelled by "Islamisation" strategies and the inability to actualise a government framework that would ensure self-governance for the South led to a protracted civil war between the north and south.5 The Addis Ababa Agreement that ended the first civil war in 1972 did not resolve political pressures and when Sharia law was introduced in 1983, it reignited the north-south conflict.6 The Second Sudanese Civil War ended with the signing of the Comprehensive Peace Agreement (CPA) in January 2005. The CPA ended a period of constant war between 1955 and 2005 barring an eleven-year truce that isolates two savage stages.7

<p>The recruitment, enlistment and use of children younger than fifteen to participate actively in hostilities is prohibited in customary international law as well as in several international legal instruments. The use of child soldiers is, despite of the prohibition, a widespread phenomenon with 300 000 as the estimated number of child soldiers in national armies as well as in various rebel and insurgent groups in the world today. Although the problem is world-wide; most recent focus have been on Africa where children have served and still serve in ongoing conflicts in various functions including but not limited to front line soldiers, messengers, guards and sex-slaves. Many of the world‟s child soldiers are girls that are facing the risks of sexual abuse and discrimination. In this thesis the 1996-2002 civil war in Sierra Leone will serve as an example of a conflict were children were used as soldiers.Prohibition against the use of child soldiers can be found in international legal instruments in both human rights law and international humanitarian law. It can also be found in instruments in the fields of international labor law and prohibition against slavery. The provisions differ in their definition of a child soldier; concerning age limit as well as the child‟s function during the conflict. There are also differences in the responsibility of states to protect children against being used as soldiers. This particularly affects girl soldiers since they often have their primary tasks behind the front line and thus are not usually included in the more narrow definitions of child soldiers.Two courts; the International Criminal Court (ICC) and the Special Court for Sierra Leone (SCSL) are used as examples of enforcement mechanisms. The SCSL as being the first court to deliver convictions for the use of child soldiers as well as thoroughly discussing the illegality of the use of child soldiers has been of importance in the fight against the use of child soldiers. The ICC will be the enforcement mechanism of the future and it has already prosecuted for the use of child soldiers. The SCSL has raised the awareness and started the struggle against impunity for those responsible for using child soldiers but it is the ICC that will have to continue the fight, although with some obstacles to overcome.</p>

The thesis investigates how China and the United States used state sovereignty in their official statements provided to the United Nations Security Council when discussing the Darfur conflict during the time period between 2004 and 2009. The thesis looks in particular at the official statements made with regards to the three different measures taken by the Security Council which were: the implementation of sanctions, the referral to the international criminal court and the deployment of peacekeeping. The thesis found that China applied a more cautious, but consistent, approach in which breaches of state sovereignty were never officially supported. The United States use of state sovereignty evolved as it became more willing over time to breach the sovereign rights of Sudan. The investigation into the official stance by China and the United States also provides general conclusions with regard to state sovereignty in contemporary international relations. First, the thesis finds that state sovereignty is still at the core of decision making in the United Nations Security Council, and as well in international relations, and there no present challenges to the role state sovereignty in contemporary international relations. Nonetheless, the different interpretations applied by states such as China and the United States, delays the decision-making process as states disagree on justifiable breaches of state sovereignty. State authorizes, such as the Government of Sudan, use state sovereignty as a barrier to effective international action to prevent atrocities and heinous crimes against humanity. In this application of state sovereignty, the rights of nation -states are protected more than the individual rights of human beings.

The thesis investigates how China and the United States used state sovereignty in their official statements provided to the United Nations Security Council when discussing the Darfur conflict during the time period between 2004 and 2009. The thesis looks in particular at the official statements made with regards to the three different measures taken by the Security Council which were: the implementation of sanctions, the referral to the international criminal court and the deployment of peacekeeping. The thesis found that China applied a more cautious, but consistent, approach in which breaches of state sovereignty were never officially supported. The United States use of state sovereignty evolved as it became more willing over time to breach the sovereign rights of Sudan. The investigation into the official stance by China and the United States also provides general conclusions with regard to state sovereignty in contemporary international relations. First, the thesis finds that state sovereignty is still at the core of decision making in the United Nations Security Council, and as well in international relations, and there no present challenges to the role state sovereignty in contemporary international relations. Nonetheless, the different interpretations applied by states such as China and the United States, delays the decision-making process as states disagree on justifiable breaches of state sovereignty. State authorizes, such as the Government of Sudan, use state sovereignty as a barrier to effective international action to prevent atrocities and heinous crimes against humanity. In this application of state sovereignty, the rights of nation -states are protected more than the individual rights of human beings.

The recruitment, enlistment and use of children younger than fifteen to participate actively in hostilities is prohibited in customary international law as well as in several international legal instruments. The use of child soldiers is, despite of the prohibition, a widespread phenomenon with 300 000 as the estimated number of child soldiers in national armies as well as in various rebel and insurgent groups in the world today. Although the problem is world-wide; most recent focus have been on Africa where children have served and still serve in ongoing conflicts in various functions including but not limited to front line soldiers, messengers, guards and sex-slaves. Many of the world‟s child soldiers are girls that are facing the risks of sexual abuse and discrimination. In this thesis the 1996-2002 civil war in Sierra Leone will serve as an example of a conflict were children were used as soldiers.Prohibition against the use of child soldiers can be found in international legal instruments in both human rights law and international humanitarian law. It can also be found in instruments in the fields of international labor law and prohibition against slavery. The provisions differ in their definition of a child soldier; concerning age limit as well as the child‟s function during the conflict. There are also differences in the responsibility of states to protect children against being used as soldiers. This particularly affects girl soldiers since they often have their primary tasks behind the front line and thus are not usually included in the more narrow definitions of child soldiers.Two courts; the International Criminal Court (ICC) and the Special Court for Sierra Leone (SCSL) are used as examples of enforcement mechanisms. The SCSL as being the first court to deliver convictions for the use of child soldiers as well as thoroughly discussing the illegality of the use of child soldiers has been of importance in the fight against the use of child soldiers. The ICC will be the enforcement mechanism of the future and it has already prosecuted for the use of child soldiers. The SCSL has raised the awareness and started the struggle against impunity for those responsible for using child soldiers but it is the ICC that will have to continue the fight, although with some obstacles to overcome.

Thesis (M.A. in National Security Affairs)--Naval Postgraduate School, September 2003. / Thesis advisor(s): Daniel Moran, David S. Yost. Includes bibliographical references (p. 93-102). Also available online.

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