Over the years, the International Criminal Court (ICC) has received criticism for exercising its territorial jurisdiction over non-state parties’ nationals. Non-state parties claim that the Court is illegitimate and that its jurisdictional claim over their nationals violates the principle of consent in public international law. This thesis aims to develop interdisciplinary research into international relations and international law by asking the question of how the alleged legitimacy deficit of the ICC can be alleviated. The interdisciplinary methodology is approached through supplementing the legal dogmatic method with international relations theory. In turn, the analysis is carried out in two sections, one dedicated to legal analysis and the other to the international relations theory constructivism. The main finding of legal analysis is that the ICC’s jurisdictional claim over non-state parties is in most cases fully in line with the principle of consent. The analysis finds that the main solution to the legitimacy deficit is that the Court should make an effort to employ its secondary and tertiary sources of law in its interpretation. Both the legal analysis and constructivist theory point to the ICC needing to be more persuasive. The ICC and its allies should create new understandings about it through norm transformation. This norm transformation will take the form of legal persuasion as well as diplomatic and political pressure. In regard to the interdisciplinary research agenda, this inquiry demonstrates that interdisciplinary researchers can tap into the legal discipline and its methodology by embracing legal formalism. Such use of the legal discipline will also allow for constructivists to learn from legal scholars about persuasion and norm systematisation.

This thesis argues that the International Criminal Court (ICC) brings a new more deontological paradigm to international interventions, founded upon the universal application of legal principle, and displacing consequentialist notions of justice linked to human rights. Based upon the Court’s Statute and mode of operations, it is argued that this is associated with assumptions concerning the ICC’s primacy, military enforcement, and theory of change. The consequences of this development in volatile contexts are demonstrated. The case study, founded upon analysis from the war-affected community, examines the impact of the International Criminal Court in the Lord’s Resistance Army war, and reveals the relationship between criminal justice enforcement, and community priorities for peace and human rights. On the basis of evidence, and contrary to narratives repeated but unsubstantiated in the literature, it demonstrates that in this case these two imperatives were in opposition to one another. The Court’s pursuit of retributive legal principle was detrimental to the community’s interests in peace and human rights. The subsequent failure of the ICC’s review process to interrogate this important issue is also established. The research establishes that statutory and operational assumptions upon which Court interventions are based do not hold in volatile contexts. For the case study community and elsewhere, this has had adverse impacts, with significant implications for the ICC. The findings indicate that if these issues are not fundamentally addressed, principled international criminal justice enforcement in volatile environments will continue to have profoundly negative human rights consequences.

The child soldier problem is an escalating and growing phenomenon around the world. It is a complex issue as it involves a wide range of areas such as human rights, politics and cultures. A comprehensive legal framework is in place to protect children in armed conflicts, yet they are still being targeted, recruited and deployed in armed groups and organizations. The purpose of this study is to conduct an exhaustive examination of current international law, de lege lata, regarding child soldiers aged 15-18. The legal-dogmatic method will be used to identify the merits, but above all the shortcomings and problems of the legislation. The result shows that international law treats children differently in terms of age and when they are no longer considered child soldiers. The findings demonstrate the difficulties between the two frameworks of international humanitarian law and international human rights law in relation to child rights and protection issues. Furthermore, it has been discovered that the international law regarding child soldiers is outdated, contradictory and inconsistent, as society and warfare have changed since the adoption of the documents. The lack of legal sanctions against recruiters and enablers complicates the situation even further.

The thesis purports to assess the United Nations Security Council (UNSC) in maintaining international peace and security and the International Criminal Court (ICC) in prosecuting individuals who have committed severe violations of international humanitarian law (IHL) and international law, during humanitarian and counter-terrorism operations. The thesis endeavours to highlight the failures of both institutions, firstly, the UNSC being unable to fulfil its institutional mandate, which is mainly attributed to the abuse of veto privileges granted to the five permanent members (P5). This has effectively allowed individuals from the militaries of the P5 and their allies elude criminal liability, promoting a culture of impunity. The UNSC’s failure to prevent P5 members use of unauthorised military force in pursuing counter-terrorism operations and interpose expeditiously in humanitarian crises, have also contributed to the erosion of the institutions’ legitimacy, which is further perpetuated by the USA’s continued ‘War on Terror’ doctrine after the 9/11 terrorist attacks. Secondly, the ICC’s inability to prosecute individuals for crimes under the Rome Statute will also be highlighted as the principle of complementarity and the court’s inability to enforce arrest warrants are significant factors contributing to the institutions inability to administer international criminal justice. The thesis draws upon practical examples to substantiate the failures of both institutions by referring to the conflicts in: Afghanistan, Iraq, Palestine, Syria and Libya. Before concluding the UNSC and the ICC have become futile, the thesis will then make recommendations for reform and propose a novel solution to restore legitimacy back to both institutions.

No description available.

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.

This research seeks to establish a methodology by which transitional justice strategies ought to be incorporated within the International Criminal Court (ICC) framework. The study is based on the situation in Uganda as an example of the state that has a situation and cases before the ICC. The aim of the thesis was achieved through the adoption of a combination of theoretical legal research and the non -doctrinal approaches. This research establishes that the primary responsibility to prosecute persons suspected of violating international law lies with the states. The importance of the concept of individual criminal responsibility, the idea that every person suspected of committing the most serious offences must be held accountable regardless of status. The principle of individual criminal responsibility is further developed with the creation of the ICC. This research clarifies that there are limitations in terms of what prosecutions can achieve during transitional periods; further, that trials in the ICC and national courts can be undertaken together with proceedings of the Truth and Reconciliation Commissions or indigenous mechasims. Such an approach will allow for confines of prosecutions to be addressed. Despite the existence of principles and institutional framework that are intended to ensure individuals are held accountable for the most serious offences of international concern, the majority of individuals are not held accountable. In order for the ICC to operate effectively it would need to seek to go beyond deterrence and retribution. This would require post – conflict states to devise transitional arrangements that compel with the ICC structure. Thus the research recommends that it would be better for judicial and non- judicial measures to be adopted in states that have cases before the ICC. Particularly Uganda must adopt the mato oput method formally as a tool to address the past human rights abuses in Uganda. All persons regardless of whether they have been granted amnesty or not must be held accountable under the mato oput measures. This implies all persons with exception to those that the ICC has issued the warrants of arrest against. / Public, Constitutional and International Law / LL. D.

The principle of complementarity is a tool used to punish the commission of core international crimes. A concerted approach is required to combat war crimes, genocide, crimes against humanity and aggression. The Prosecutor of the International Criminal Court needs to fully appreciate the express and implied discretionary powers of states to ensure all possible accountability mechanisms are explored. Failure by the Prosecutor to do so results in missed opportunities to capitalise on various options related to the proper application of complementarity. Therefore, there is a need for consultations to establish that the International Criminal Court and prosecutions can no longer exist without competing alternatives preferred by states. The current misunderstandings on the application of complementarity are rooted in unresolved state and prosecutorial discretions. The endangering of state discretion threatens the integrity and credibility of the International Criminal Court. The unaddressed question of state discretion is also at the centre of disputes between the African Union and the International Criminal Court. Grey areas in the application of complementarity are clearly visible through the inconsistency and diversity of the International Criminal Court decisions and frequent prosecutorial policy proclamations. As a result, prosecutorial discretion needs to be checked. Prosecutorial discretion is checked at the United Nations, International Criminal Court and state levels. The checks at regional level and by non-prosecutorial options need to be explored. The call is for the International Criminal Court not to neglect the legal-political environment which the Court operates in. The environment is essential in demarcating the exercise of discretions. The Kenyatta case is illustrative of the need to invent an interpretation that reflects the evolving theory to practice reality. The development or amendment of a prosecutorial policy is desirable to give guidance on the value, circumstances and priority accorded to justice. The policy should be comprehensive enough to accommodate mechanisms which advocate for strengthened state discretion. For instance, African Union instruments and treaties reveal that the respect of state discretion is one of the core principles of the African Union system. / Public, Constitutional, and International Law / LL.D.

Transitional justice has undergone tremendous shifts since it was first used in Latin American and Eastern European countries to address post-authoritarian and post-communist legacies of atrocity and repression. In particular, the establishment of the International Criminal Court (ICC) has increased the demand for prosecutions within a field that was previously marked by compromise and non-prosecution. While there are increasing expectations that countries with unresolved claims of human rights abuses should enact transitional justice policies, most of the literature on the subject largely omits to explain how elites from those countries choose among the possible options of transitional justice, and specifically, how they choose among international prosecutions, domestic prosecutions, and truth-seeking. Using case studies of Kenya and Uganda, this dissertation examines this decision-making process to understand how elites choose and reject different transitional justice policies. Theoretically, the research examines how preferences for transitional justice policies are constituted through “judicial statecraft”: the strategic efforts by heterogeneous, interest-pursuing elites to use justice-related policies as carrots and sticks in the overall contestation of power. The research finds that the choices of elites about judicial statecraft depend on three factors: the extent to which the elites are secure that their policy choices cannot be subverted from within; the cost and credibility of transitional justice threats; and the effects, both intended and unintended, of history.

Thesis (MA (Political Science))--University of Stellenbosch, 2010. / ENGLISH ABSTRACT: Based on the work of leading theorists within peace and conflict studies, this thesis develops a theoretical framework in order to analyse the seemingly deadlocked ‘peace vs. justice’ debate to explore the possibility of expanding the perspectives in a combined approach. It finds that the debate is based on a narrow perception of both concepts, where they are perceived as negotiations and punishment respectively. Only through applying such a combined approach is it thereby possible to move beyond this current situation. This theoretical framework is then applied on the case of the ongoing conflict in Northern Uganda, where the empirical aspects of this debate have lasted for the longest period of time since the International Criminal Court’s involvement in 2004. With basis in the Juba peace agreement from 2008 that would have balanced retributive and restorative forms of justice, this study finds that the only way to create sustainable peace is by striking a balance between the transitional justice mechanisms of the ICC, conditional amnesties and more traditional forms of justice in the affected communities in Northern Uganda. / AFRIKAANSE OPSOMMING: Op grond van die werk van voorste teoretici op die gebied van vrede- en konflikstudie, ontwikkel hierdie tesis teoretiese raamwerk vir die ontleding van die oënskynlik vasgevalle debat tussen vrede en geregtigheid, ten einde die moontlike verbreding van perspektiewe met behulp van 'n gekombineerde benadering te ondersoek. Die studie bevind dat die debat tussen vrede en geregtigheid op 'n baie eng opvatting van dié twee konsepte berus, naamlik dié van onderhandeling en straf onderskeidelik. Slegs deur 'n gekombineerde benadering toe te pas, is dit dus moontlik om die huidige toedrag van sake te bowe te kom. Die teoretiese raamwerk van die studie is vervolgens op die voortslepende konflik in Noord-Uganda toegepas, waar die empiriese aspekte van dié debat steeds sedert die betrokkenheid van die Internasionale Strafhof in 2004 voorkom. Met die Juba-vredesooreenkoms van 2008 as uitgangspunt, wat veronderstel was om 'n balans te vind tussen vergeldende en herstellende vorme van geregtigheid, bevind dié studie dat volhoubare vrede slegs bereik kan word deur 'n gebalanseerde kombinasie van die Internasionale Strafhof se oorgangsgeregtigheidsmeganisme, voorwaardelike amnestie, en meer tradisionele vorme van geregtigheid in die geaffekteerde Noord-Ugandese gemeenskappe.