This study deals with two aspects of international law. The first is ‘immunity of state officials’ and the second is ‘prosecution of international crimes.’ Immunity is discussed in the context of international crimes. The study focuses on Africa because African state officials have become subjects of international criminal justice before international courts and various national courts both in Europe and Africa. It presents a new contribution to international criminal justice in Africa by examining the practice on prosecution of international crimes in eleven African states: South Africa; Kenya; Senegal; Ethiopia; Burundi; Rwanda; DRC; Congo; Niger; Burkina Faso and Uganda. The study concludes that immunity of state officials has been outlawed in these states thereby rendering state officials amenable to criminal prosecution for international crimes. The thesis argues that although immunity is founded under customary international law, it does not prevail over international law jus cogens on the prosecution of international crimes because such jus cogens trumps immunity. It is argued that, committing international crimes cannot qualify as acts performed in official capacity for the purpose of upholding immunity of state officials. In principle, customary international law outlaws functional immunity in respect of international crimes. Hence, in relation to international crimes, state officials cannot benefit from immunity from prosecution or subpoenas. Further, the study criticises the African Union’s opposition to the prosecutions before the International Criminal Court (ICC). It argues that however strong it may be, such opposition is unfounded in international law and is motivated by African solidarity to weaken the role of the ICC in Africa. It concludes that the decisions taken by the African Union not to cooperate with the ICC are geared towards breaching international obligations on cooperation with the ICC. The study calls upon African states to respect their obligations under the Rome Statute and customary international law. It recommends that African states should cooperate with the ICC in the investigations and prosecution of persons responsible for international crimes in Africa. At international level, the study reveals the conflicting jurisprudence of international courts on subpoenas against state officials. It argues that, state officials are not immune from being subpoenaed to testify or adduce evidence before international courts. It contends that issuing subpoenas to state officials ensures fairness and equality of arms in the prosecution of international crimes. It recommends that international courts should treat state officials equally regarding prosecution and subpoenas. It further recommends that African states should respect their obligations arising from the Rome Statute and that, immunity should not be used to develop a culture of impunity for international crimes committed in Africa. / Thesis (LLD)--University of Pretoria, 2012. / Centre for Human Rights / unrestricted

Made available in DSpace on 2016-04-26T20:23:56Z (GMT). No. of bitstreams: 1 Karla Karolina Harada Souza.pdf: 2129108 bytes, checksum: ff719bdc43601662ea972b632c84a035 (MD5) Previous issue date: 2015-10-07 / This dissertation aims to identify the environment as a fundamental human right, considering it as an extension of the right to life and inherent to the dignity of the human person. Initially, there was a discourse about human rights, and later on fundamental rights, analysing their concepts and understandings of various authors on the subject, and the implications of its legal status, so that reaching these definitions, we could qualify and conceive the right to the environment as a fundamental human right. Following, we spoke about the laws, international treaties and conventions regarding human rights and concerning to environmental protection, showing that in the present international legal system, these two subjects, namely, human rights and the environment, are treated separately, mainly due to the historical moment in which they were developed and drafted. We also examined the internalization and constitutionalising movements of these rights, and their hierarchy within the domestic laws of the countries. We also evaluated the treatment and the evolution of human rights in the international level, so that through a holistic understanding, we can say that considering the protection of the environment as a fundamental human right, the right to the environment should be protected more completely, especially at an international level. In the absence of a specific international courts and bodies for the protection of the environment, those rights could be brought before international courts and human rights organisms. Finally, after all the conceptual theories and studies on the understanding of the evolution and structure of the environment in the world s legal system, we support the interconnection of these objects, guaranteeing treatment, status and strength of a fundamental human right to the defence and protection of the environment / O presente trabalho tem como objetivo identificar o meio ambiente como um direito humano fundamental, considerando-o como uma extensão, parte do direito à vida e inerente à própria dignidade da pessoa humana. Inicialmente, falou-se sobre os direitos humanos e, posteriormente, sobre os direitos fundamentais, analisando os seus conceitos e os entendimentos de diversos autores sobre o assunto, bem como as implicações de sua natureza jurídica para que, alcançando estas definições, se pudesse qualificar e conceber o direito ao ambiente como direito humano fundamental. A seguir, discorreu-se sobre as legislações, tratados e convenções internacionais, que tratam dos direitos do homem e as que tratam da proteção do meio ambiente, mostrando que no presente ordenamento jurídico internacional, essas duas matérias, quais sejam, direitos humanos e meio ambiente, são tratadas separadamente, principalmente devido ao momento histórico, no qual se desenvolveram. Frisou-se, também, a internalização e os movimentos de constitucionalização destes direitos, e sua hierarquização dentro do ordenamento jurídico interno dos países. Destacou-se, ainda, o tratamento e a evolução dos direitos humanos no cenário internacional, a fim de que através de uma compreensão holística se possa afirmar que, compreendendo a proteção do meio ambiente como direito humano fundamental, o direito ao meio ambiente seria protegido e tutelado de forma mais satisfatória, principalmente em nível internacional, que, na ausência de cortes e organismos jurisdicionais específicos de meio ambiente, este possam ser levados perante as cortes e organismos internacionais de direitos humanos. Por fim, diante de toda a teoria conceitual, bem como diante da compreensão da evolução e estruturação do meio ambiente para o direito no mundo, compreende-se a interconexão dos objetos, conferindo tratamento, status e força de direito humano fundamental à defesa e proteção do meio ambiente

Thesis (Ph. D.)--Universität, Frankfurt am Main, 2006. / Material type: Dissertations. Includes bibliographical references (p. 283-317).

Le statut du chef de l'État et des gouvernants, qui n'était déjà plus un obstacle insurmontable aux poursuites judiciaires depuis le droit de Nuremberg, apparaît désormais comme un bastion menacé. Les principes classiques du droit international comme l'immunité des chefs d'État, la sauvegarde de la fonction représentative et la souveraineté de l'État permettaient aux gouvernants d'échapper à toute poursuite pénale. Le droit international, qui s'analysait simplement comme un droit interétatique, a connu de profondes mutations. Ce droit ne se limite plus aux seuls États : de nouveaux sujets comme de nouveaux domaines de compétence émergent. Les individus ont ainsi pris une place de plus en plus importante dans le droit international avec des préoccupations d'humanité afin de prévenir les atrocités qu'a déjà connues le monde à l'occasion de différents conflits armés. La responsabilité du chef de l'État n'est dès lors plus une affaire d'ordre interne, mais bien également d'ordre international, avec l'émergence d'une nouvelle branche du droit international : le droit pénal international. Les nouvelles tendances du droit pénal international, marquées par l'exigence croissante de répression des crimes les plus graves, s'opposent désormais à la conception classique de l'immunité qui a longtemps triomphé dans l'ordre juridique international et visent à atténuer la raison d'État. Ce mouvement part de la conception selon laquelle « on ne saurait plus accepter l'idée même d'immunité lorsqu'il est commis un crime qui ébranle les fondements mêmes de la communauté internationale et révolte la conscience de tous les hommes ». Cette prise de conscience de l'incompatibilité entre immunités et droits de l'homme se manifeste à travers l'évolution de la protection internationale des droits de l'homme favorable à une « immunisation » du régime des immunités des gouvernants, organes de l'État coupables de violations graves du droit international. En dépit de quelques réticences, la responsabilité pénale du chef de l'État est aujourd'hui une réalité qui mérite d'être universellement approuvée et soutenue. / The status of the Head of State and governments, which was already no longer an insurmountable obstacle to prosecution since Nuremberg law, has emerged as a threatened bastion. The traditional principles of international law as the immunity of Heads of State, the protection of the representative function and state sovereignty allowed the rulers to escape criminal prosecution. International law, which is simply analyzed as an interstate law, has undergone profound changes. This right is no longer limited only to States: new topics as new emerging areas of competence (areas of competence or fields of jurisdiction). Individuals have taken an increasingly important role in the international law with the concerns of humanity to prevent atrocities which the world has already known on the occasion of various armed conflicts. The responsibility of the Head of State is therefore no longer a matter of a domestic order, but also an international one, with the emergence of a new branch of international law: international criminal law. New trends in the international criminal law, marked by the increasing demand for dealing with the most serious crimes, henceforth oppose to the classical conception of immunity that has prevailed for a long time in the international legal order, and aim at reducing the State cause. This movement starts from the idea according to which "we can no longer accept the idea of immunity when a crime is committed that undermines the very foundations of the international community and revolts the conscience of all mankind." This awareness of the incompatibility between immunities and human rights is developed through the evolution of the international protection of human rights in favor of "immunization" of the regime of immunities of rulers, State bodies responsible for serious violations of international Law. Despite some misgivings, the criminal responsibility of the Head of State is a reality that should be universally endorsed and supported.

The Southern African Development Community Tribunal (the Tribunal) is the only judicial organ of the Southern African Development Community (the SADC). Its mandate includes ensuring “adherence to and the proper interpretation of the provisions of the Southern African Development Community Treaty” (the Treaty). The decisions of the Tribunal are final and binding in the territories of member states party to a dispute before it. The responsibility to ensure that the decisions of the Tribunal are enforced lies with the Southern African Development Community Summit (the Summit). The Summit is the supreme policy-making body of the SADC. It comprises the Heads of State or Government of all SADC member states. The decisions of the Summit are binding on all member states and, upon referral from the Tribunal, it has the power to take appropriate action against a member state who refuses to honour a decision of the Tribunal. The Tribunal was established primarily to deal with disputes emanating from the SADC’s economic and political units and not with human rights. A dispute concerning allegations of human rights violations in Zimbabwe was brought before the Tribunal by farmers affected by the country’s land-reform policy. The Tribunal, through reliance on the doctrine of implied powers, and the principles and objectives of the SADC as contained in the Treaty, extended its jurisdiction. In particular, the Tribunal found that it had jurisdiction to hear cases involving human rights violations and that there had indeed been human rights violations in the case before it. It consequently ruled against Zimbabwe. This decision has been welcomed by many within the SADC region as showing the Tribunal’s commitment to interpreting the Treaty in a way that does not run counter the rights of SADC citizens. However, the Tribunal’s decision has met with resistance from Zimbabwe and has not been implemented on the ground, inter alia, that the Tribunal acted beyond its mandate. The Tribunal has on several occasions referred cases of non-compliance to the Summit for appropriate action against Zimbabwe. The Summit, however, has done nothing concrete to ensure that the Tribunal’s decisions are enforced in Zimbabwe. Instead, in an unexpected move that sent shockwaves through the SADC region and beyond, the Summit suspended the Tribunal and resolved that it should neither receive nor adjudicate any cases. During the SADC summit in August 2014, a Protocol on the Tribunal in the Southern African Development Community was adopted and signed (the 2014 Protocol). In terms of this Protocol the iii jurisdiction of the (new) Tribunal will be limited to inter-state disputes. Unfortunately, it also does not provide any transitional measures to address issues such as the manner to deal with pending cases and the enforcement of judgments. When it comes to the execution and enforcement of judgments, it can be argued that the 2014 Protocol is largely a replica of the original 2000 Tribunal Protocol. The reason for this is that the envisaged mechanisms to enforce the decisions of the new Tribunal is to a large extent similar to the previous one. Unsatisfied over the non-compliance with the decision by Zimbabwe, the litigants approached the South African courts to enforce the Tribunal’s decision in South Africa.1 The South African courts found that South Africa is obliged under the SADC Treaty to take all the necessary measures to ensure that the decisions of the Tribunal are enforced, and ruled against Zimbabwe. However, the decision is yet to be enforced. The non-compliance with the judgments and a lack of mechanisms to enforce the decisions of the Tribunal, are crucial issues as they undermine the authority of the Tribunal. This thesis explores whether the Tribunal acted within its mandate in receiving and hearing a human rights case. It further considers whether, in the absence of a human rights mandate, the Tribunal enjoys implied powers under international law to invoke the powers necessary for the fulfilment of the objectives set out in the Treaty. It also reviews the concept of state sovereignty and the extent to which it has been affected by human rights norms post-World War II; regionalism; and globalisation. An important aspect examined, is the relationship between SADC Community law and the national law of member states. The relationship between national courts and the Tribunal also receives attention. Ultimately, the discourse addresses compliance and enforcement of the Tribunal’s decisions in the context of international law. To the extent relevant, I draw on other regional (the European Court of Justice) and sub-regional (the ECOWAS Community Court of Justice, and the East African Court of Justice) courts to establish how they have dealt with human rights jurisdiction and the enforcement of their judgments. / Jurisprudence / LL. D.

Judicial activism implies a hidden politicization of the Court. The legal arguments and the methods used by the Court of Justice of the European Union (CJEU) might seem coherent. However, an inquiry into judicial activism means looking beyond the legal reasoning of the Court and trying to “connect the dots” of an alternative narrative that can explain the Court’s long-term approach to certain issues. In the case of judicial activism of the CJEU in the case-law concerning public international law, the veil for the politicization of the Court is provided by the pluralist architecture of global law. The heterarchical structure of relations among legal orders in the international arena activates the CJEU as an actor of global governance. Simultaneously, it results in the Court adopting a rather internal and defensive approach, undermining legal security.<p><p>Judicial activism of the CJEU finds its particular expressions in the case-law concerning public international law. The pro-integrationist tendency of the CJEU often raised in the literature concerning the Court’s role in the process of EU integration, translates into a substantial and an institutional dimension of judicial activism. The substantial articulation of judicial activism in the case-law concerning international law is the Court’s emphasis on the autonomy of the EU legal order. This internal perspective is adopted not only for virtuous reasons, but also in defense of definitely not universal European interests. The institutional dimension refers to the Court’s position within the EU structure of governance. The case-law concerning international law is marked by a close alignment with the European Commission and the integration of the EU goals in external relations. Moreover, the pluralist veil can cover the extent to which the Court’s decisions concerning international law are influenced by considerations completely internal to the EU. <p><p>In my analysis I proceed in three steps that are reflected in three chapters of the thesis. There is no clear and prevalent definition of judicial activism, but instead rather multiple possibilities of approaching the concept. While the general intend of the research project is to critically reflect on the concept of judicial activism of the highest courts within a legal order, the particular focus will be on the CJEU dealing with international law. I proceed in three steps. First, I assess different understandings of the role of the judge and the concept of judicial activism in legal literature in view of ascertaining the relevance of the debate and distilling some general components of a possible definition. Secondly, I identify the factors particular for the position of the CJEU within the EU legal order and with regard to international law. The particular characteristics of the CJEU result in a limited applicability of the general definitions of judicial activism. Finally, I analyze the case-law in view of identifying examples as well as counter-examples of the particular symptoms/attributes. Because judicial activism broadens the scope of the factors guiding judicial decision-making, it enables us to better understand the contingencies in the Court´s jurisprudence. / Doctorat en Sciences juridiques / info:eu-repo/semantics/nonPublished

Les statuts et les règlements des juridictions internationales pénales reconnaissent la plupart des garanties du droit à un procès équitable prévues par les instruments internationaux relatifs aux droits de l’homme. Pourtant, si on examine le volume du contentieux pénal international, nous allons vite nous apercevoir que les allégations relatives à la violation de ce droit occupent une place importante. C’est pourquoi, il nous paraissait nécessaire de déceler et d’analyser les raisons de cette distorsion. Pour faire une telle étude, nous avons préalablement avancé qu’au-delà de la dimension originelle de la procédure pénale internationale visant à mettre en œuvre les règles du droit international pénal, deux autres dimensions se sont confirmées aussi bien à travers les textes que dans la pratique. Il s’agit de la dimension humaniste d’une part et de la dimension managériale d’autre part. Partant de ce constat, nous avons voulu lever le voile sur les impacts de ses dernières sur la mise en œuvre effective du droit à un procès équitable, et ce, en procédant à une analyse critique. Le but de cette démarche est de démontrer que ces dimensions intrinsèques de la procédure pénale internationale, ont des effets directs et indirects sur le caractère équitable des procès pénaux internationaux / The statutes and the rules of international criminal courts recognize most of the guarantees of the right to a fair trial under international instruments on human rights. However, if we examine the size of international criminal litigation, we will soon realize that the allegations relating to the violation of this right take a large place. Therefore, it seemed necessary to identify and analyze the reasons for this distortion. To do such a study, we have previously argued that beyond the original dimensions of the international criminal procedure to implement the rules of international criminal law, two others dimensions were confirmed by the texts and the practice. There are the humanist and the managerial dimensions. With this in mind, we wanted to uncover their impact on the effective implementation of the right to a fair trial, conducting a critical analysis. The purpose of this approach is to demonstrate that these intrinsic dimensions of international criminal procedure have direct and indirect effects on the fairness of international criminal trials

The Southern African Development Community (SADC) is a regional economic community established by Treaty in 1992 and comprising fifteen southern African countries. The Tribunal, SADC’s judicial organ, is situated in Windhoek, Namibia and became operational in 2005. The Tribunal enjoys a wide mandate to hear and determine disputes between states, states and SADC, and between natural and legal persons and states or SADC. It is mandated to develop its own jurisprudence having regard to applicable treaties, general rules and principles of public international law, and principles and rules of law of member states. Being new in the field, the Tribunal has not as yet developed a significant jurisprudence although it has delivered a number of judgments some of which are referred to in the study. The Tribunal is expected to develop its own jurisprudence having regard to the jurisprudence developed by other international courts involved in the judicial settlement of disputes. The study offers a comparative review and analysis of the jurisprudence of two selected courts: the International Court of Justice (ICJ) and the Court of Justice of the European Union (ECJ). The focus is on four selected areas considered crucial to the functioning of the Tribunal and the selected courts. The study discusses the parties with access to the Tribunal and compares this with access to the ICJ and ECJ. The jurisdiction of the Tribunal is contrasted with that of the two selected courts. The sources of law available to the Tribunal are discussed and contrasted to those of the two courts. Lastly, the enforcement of law in SADC is contrasted to what applies in relation to the selected courts. In each selected area, similarities and differences between the Tribunal and the two courts are noted and critically evaluated. Further, rules and principles developed by the two selected courts are explored in depth with a view to identifying those which could be of use to the Tribunal. Recommendations are made on rules and principles which could be of use to the Tribunal and on possible improvements to the SADC treaty regime. / Constitutional, International and Indigenous Law / LL.D.

Lo studio si inserisce nel dibattito sul potere delle multinazionali e il rispetto dei diritti umani fondamentali e approfondisce i concetti di responsabilità sociale delle imprese (CSR) e della loro "accountability", inquadrando l'analisi nel contesto più ampio degli investimenti esteri diretti (FDI), con i relativi aspetti economici, tecnologici e sociali, nonché ambientali e politici. Si analizzano le norme internazionali in tema di rispetto dei diritti umani da parte delle aziende, ed i meccanismi legali per rendere le società "accountable", soprattutto in caso di complicità aziendali negli abusi perpetrati dagli Stati, anche attraverso la giurisprudenza dei tribunali penali internazionali e dei tribunali statunitensi. Viene data attenzione al settore della sicurezza, i.e. "Private Military and Security Companies" (PMSCs, interessato da notevole crescita negli ultimi decenni. Le PMSCs, impiegate da parte dei governi che esternalizzano una funzione tipicamente dello stato e da imprese e ONG attive in contesti difficili, hanno operato senza adeguato controllo. Le loro attività sollevano questioni su potenziali abusi dei diritti umani commessi dai propri dipendenti oltre che su violazioni dei diritti del lavoro subite dagli stessi. Le azioni ONU per portare le PMSCs fuori dalla 'zona legale grigia' in cui hanno operato vengono trattate insieme alle iniziative di autoregolamentazione. / The study, given the debate about the increasing power of corporations and the attempts to ensure their respect of fundamental human rights, deepens the concepts of corporate social responsibility (CSR) and corporate accountability, framing the analysis within the broader discourse of Foreign Direct Investment (FDI), with its economic, technological and social aspects as well as environmental and political issues. International standards in the area of corporations’ human rights obligations are analyzed in addition to legal mechanisms to hold corporations accountable, particularly for corporate complicity in human rights abuses by States, through the jurisprudence of international criminal tribunals and U.S. Courts. Special attention is given to the security sector, i.e. Private Military and Security Companies (PMSCs), interested in the last decades by a steady growth. PMSCs, increasingly contracted by governments willing to outsource a typical state function and by companies and NGOs active in difficult contexts, have been operating without proper supervision and accountability. PMSCs activities raise issues concerning potential human rights violations committed by their employees and labour rights abuses their employees might suffer themselves. UN actions aimed at bringing PMSCs out of the legal ‘grey zone’ where they have been operating are tackled alongside with self-regulatory initiatives.

The Southern African Development Community (SADC) is a regional economic community established by Treaty in 1992 and comprising fifteen southern African countries. The Tribunal, SADC’s judicial organ, is situated in Windhoek, Namibia and became operational in 2005. The Tribunal enjoys a wide mandate to hear and determine disputes between states, states and SADC, and between natural and legal persons and states or SADC. It is mandated to develop its own jurisprudence having regard to applicable treaties, general rules and principles of public international law, and principles and rules of law of member states. Being new in the field, the Tribunal has not as yet developed a significant jurisprudence although it has delivered a number of judgments some of which are referred to in the study. The Tribunal is expected to develop its own jurisprudence having regard to the jurisprudence developed by other international courts involved in the judicial settlement of disputes. The study offers a comparative review and analysis of the jurisprudence of two selected courts: the International Court of Justice (ICJ) and the Court of Justice of the European Union (ECJ). The focus is on four selected areas considered crucial to the functioning of the Tribunal and the selected courts. The study discusses the parties with access to the Tribunal and compares this with access to the ICJ and ECJ. The jurisdiction of the Tribunal is contrasted with that of the two selected courts. The sources of law available to the Tribunal are discussed and contrasted to those of the two courts. Lastly, the enforcement of law in SADC is contrasted to what applies in relation to the selected courts. In each selected area, similarities and differences between the Tribunal and the two courts are noted and critically evaluated. Further, rules and principles developed by the two selected courts are explored in depth with a view to identifying those which could be of use to the Tribunal. Recommendations are made on rules and principles which could be of use to the Tribunal and on possible improvements to the SADC treaty regime. / Constitutional, International and Indigenous Law / LL.D.