Magister Legum - LLM / Objective of the study – The primary goal of this research study was to investigate and document the evolution and historical development of the crime of aggression. Design / methodology / approach – The research study was primarily a desk-top based research by design and methodology. It reviews a range of published books, expert commentaries, and journal articles that provide theoretical and practical research on the evolution and development of crime of aggression through the past centuries to the present day. The discussion is majorly premised around key historical debates and events that shaped, and defined the rubric of the crime of aggression. These include: the philosophers' conceptualisation of the doctrine of "just war" or "unjust war", states' practice before and after the First World War and Second World War, the International Military Tribunals, the birth and role of the United Nations, the 1998 Rome Conference and the 2010 Kampala ICC Review Conference. Findings – This study provides information on each author's perspective on the status of the crime of aggression before and after the First ICC Review Conference. The study generally concedes that although today the crime of aggression is defined under the Rome Statute, and the jurisdiction of the ICC over it spelt out; its status under the treaty regime remains distinctly different from that under international customary law. Significance of the study – The significance of this research study lies in the fact that it is useful with regard to documenting the historical development of the crime of aggression. It also fulfils an identified need to clarify the position of the crime of aggression after the landmark First ICC Review Conference that took place in Kampala during May / June 2010. Study type – Postgraduate university Master of Laws research paper.

Magister Legum - LLM / This mini-thesis makes a claim that when Rwanda established the rule of Gacaca court system as a communal mechanism of transitional justice in the aftermath of the 1994 genocide, it accordingly enabled space for the ‘social truth’ to take centre stage as opposed to the legal truth. As such, testimonies by perpetrators and accounts by witnesses could only be permissible in Gacaca courts if they were socially acceptable by the community, and any evidence only needed to be orally validated by community members but not verified through formal legal procedures. The principal objective of this mini-thesis, therefore, is to examine how the ‘social truth’ was employed by Gacaca courts and how this kind of truth resonated with the communal nature of the courts.

A thesis submitted in fulfilment to the degree of Doctor of Philosophy to the Faculty of Commerce, Law and Management,School of Law, University of the Witwatersrand / It has been almost 10 years since the International Criminal Court (‘ICC’) issued two warrants for the arrest of former President of Sudan, Omar Hassan Ahmad Al Bashir (‘Al Bashir’) on charges of crimes against humanity, war crimes and genocide. Despite the warrants, Al Bashir and some of his alleged co-perpetrators remain free as the ICC does not try suspects in absentia. Al Bashir has travelled to several countries, both contracting and non-contracting parties to the Rome Statute of the ICC (‘Statute’), in defiance of the warrants for his arrest without being arrested. Failure by states to cooperate with ICC requests to arrest and surrender him for prosecution has been the biggest challenge of the international criminal justice system over the years.Arresting and surrendering a person in the position of Al Bashir raises a number of legal issues relevant to this thesis. First, Sudan is a non-contracting state to the Statute and generally, it is not obliged to cooperate with the ICC. This raises the second question as to whether Al Bashir is entitled to immunities when it comes to contracting states to the Statute that are requested to arrest and surrender him to the ICC. Third, several contracting parties to the Statute have failed to arrest and surrender him to the ICC thereby breaching their obligations under the Statute. These states claim that there is a conflict between Articles 27(2), on non-immunity of a head of state, and 98(1), which requires the requested non-contracting state party to waive its immunity prior to arresting and surrendering Al Bashir to the ICC, in case they breach their customary international law obligations owed to Sudan. Fourth, they claim that the United Nations Security Council (‘UNSC’) Resolution 1593 (2005) which referred the situation of Sudan to the ICC does not impose any obligation on states other than Sudan to cooperate with the ICC on this matter. Fifth, several states have still failed to cooperate with ICC requests to arrest and surrender Al Bashir despite the ICC Pre-Trial Chamber (PTC) holding that there is no conflict between their statute and international law obligations towards the Sudan. The PTC referred these non-cooperating states to the ICC Assembly of States Parties (‘ASP’) and United Nations Security Council (‘UNSC’) in terms of article 87(7) of the Statute. However, they have so far faced no consequences. What is unclear from Article 87(7) is the nature and scope of remedies that are available to the ASP and the UNSC when a non-cooperating state has been referred by the ICC for enforcement. It is also unclear as to what procedure the ASP and the UNSC would follow in enforcing cooperation. It is observed from the provisions of the Statute that the ASP’s powers are unclear, whereas the UNSC is expected to act in terms of its Chapter VII powers under the UN Charter. It is further observed from the decisions of the PTC and the reports of the ICC Prosecutor to the UNSC that both the ASP and the UNSC have not yet taken any action against noncooperating states. As a matter of fact, it is unclear whether the ASP or the UNSC will ever take any action against non-cooperating states for failing to arrest and surrender Al Bashir to the ICC. Using the example of Sudan and Al Bashir, this thesis analyses the enforcement of the ICC’s requests and decisions by the UNSC and the ASP in relation to states’ failure to cooperate. Since the ICC cannot operate without the cooperation of states, the thesis argues that there is a need for the ASP and UNSC to take strong measures against non-cooperating states. The thesis identifies a critical need for a strong, clear and elaborate follow-up mechanism against non-cooperating states that have been referred to the ASP and UNSC under the Statute in order to contribute to the fight against international crimes and ending impunity. The thesis therefore does two things. Firstly, it examines the nature and scope of the powers of the UNSC and ASP under the Statute in relation to enforcing state cooperation with the ICC requests. This entails exploring how the UNSC and ASP can compel states to fulfill their Statute obligation to cooperate with the ICC’s requests to arrest and surrender suspects. Secondly, the thesis develops recommendations to the UNSC and ASP for the enforcement of the ICC’s requests and decisions to arrest and surrender suspects. In order to develop proposals for an effective enforcement of cooperation with ICC requests to arrest and surrender Al Bashir and persons in similar position under the Statute, the thesis draws lessons from the two regional human rights tribunals of the Inter-American Court of Human Rights (IActHR) and the European Court on Human Rights (ECtHR). Although, the African Court on Human and People’s Rights (AfCHPR) has the capacity to monitor state cooperation with its decisions through the existence of a legal framework under the Charter, it has not yet developed this area of the law. The AfCHPR has neither clear practice nor policy on enforcement of state cooperation. The AfCHPR does not also have follow-up mechanisms on enforcement of state cooperation with its decisions. It is for this reason that a discussion of this system in this thesis is merely illustrative of the legal framework on state cooperation including the areas that may require improvement if the system is to achieve maximum state cooperation. / NG (2020)

This thesis is concerned with the ways in which international law regulates state and individual complicity. Complicity is a derivative form of responsibility that links an accomplice to wrongdoing by a principal actor. Whenever complicity is prohibited, certain questions arise about the scope and structure of the complicity rule. To answer these questions, this thesis proposes an analytical framework in which complicity rules may be assessed, and defends a normative claim as to their optimal structure. This framework and normative claim anchor the thesis’ analysis of complicity in international law. The thesis shows that international criminal law regulates individual complicity in a comprehensive way, using the doctrines of instigation and aiding and abetting to inculpate complicit participants in international crimes. These doctrines are marked by the breadth of the complicit conduct prohibited, a standard of knowledge in the fault required of the accomplice, and an underused nexus requirement between the accomplice’s acts and the principal’s wrong. In contrast, international law’s regulation of state complicity was historically marked by an absence of complicity rules. In respect of state complicity in the wrongdoing of another state, international law now imposes both specific and general complicity obligations, the latter prohibiting states from aiding or assisting another state in the commission of any internationally wrongful act. In respect of the ways that states participate in harms caused by non-state actors, the traditional normative structure of international law, which imposed obligations only on states, foreclosed the possibility of regulating the state’s participation as a form of complicity. As that traditional normative structure has evolved, so the possibility of holding states responsible for complicity in the wrongdoing of non-state actors has emerged. More and more, both the wrongs that international actors commit, and the wrongs they help or encourage others to commit, matter.

This thesis examines the practices of international, national, and localised criminal courts in post-genocide Rwanda. It argues that, although the courts are compatible in law, an interpretive cultural analysis shows that they have often competed with one another. The research draws on interviews conducted with judges, lawyers, and a group of witnesses and suspects from the United Nations International Criminal Tribunal for Rwanda (ICTR), the national Rwandan courts, and the gacaca community courts. The courts’ judges and lawyers have interpreted Rwanda’s transitional justice processes very differently. The ICTR has been principally concerned with developing international criminal case law. The national courts purport to have focused on domestic legal reform, while personnel inside gacaca view these local courts as having provided an account of the events and causes of the genocide. This thesis argues that the different interpretations offered within Rwanda’s post-genocide courts illuminate divergent legal cultures inside the institutions, leading to failures in effective cooperation and evidence gathering. The courts have pursued diverse means to try to establish their legitimate authority. However, among a group of Rwandan citizens, the practices of one court were routinely used as the basis to criticise the actions of the others, raising challenges for the legitimacy of transitional justice in Rwanda. The potential for similar competition between domestic and international justice processes is apparent in the current practice of the International Criminal Court (ICC). However, this competition can be mitigated through more effective communication between different justice systems which respond to the needs of the affected populations, fostering a legal culture of complementarity.

Grounds for Excluding Criminal Responsibility in International Criminal Law This thesis aims on currently two most discussed grounds for excluding criminal responsibility (defenses) in international criminal law: defense of duress and defense of superior order. First of them emerges from a situation in which a perpetrator is forced by threat to commit a crime under international law. The second one addresses a question whether a person should be re- sponsible for a crime committed pursuant to an order of a Government or of a superior. Regarding the structure of the army, it is not surprising that there these two defenses occur together in many cases and that they arise from the very same situation. However, they should not be mistaken one for another. The aim of this thesis is to analyze the most significant case law on the topic and to research what was the background for the formulation of the articles on defense of duress and superior order in the Rome Statute of ICC. The paper also examines the deficiencies of the regulation of duress and superior order in the Rome Statute and their possible improvement. The thesis is composed of 5 chapters. The first chapter is introductory and describes used meth- odology of the paper and its structure. Chapter number two deals with grounds for excluding...

Univerzita Karlova v Praze Právnická fakulta David Hlaváček ROZVOJ MEZINÁRODNÍHO TRESTNÍHO PRÁVA V KONTEXTU VÁLKY V BÝVALÉ JUGOSLÁVII Diplomová práce Vedoucí diplomové práce: doc. PhDr. Stanislava Hýbnerová, CSc. Katedra mezinárodního práva Datum uzavření rukopisu: 21. ledna 2015 Summary of the Thesis: The introductory historical overview (chapter two) gives an insight into the merits of the military conflict in the former Yugoslavia and lists the most fundamental causes behind this scandalous period of modern European history. Next, in chapter three, the thesis focuses on the impacts of this ongoing war on the international communities and their reactions, as well as on the particular measures taken by the United Nations, the universal platform established for these purposes. The most significant of these measures is undoubtedly the establishing of the International Criminal Tribunal for the former Yugoslavia (ICTY), which prosecutes crimes against humanity, genocide, grave breaches of the Geneva Conventions and violations of the laws or customs of war. For the first time after forty years, the international criminal law had been applied. Before that, there was no institution entitled to enforce this law within the international criminal justice. In chapter four, the ICTY is characterized and described,...

The diploma thesis analyzes the relationship between the Czech Republic and the International Criminal Court. The purpose of my research was to compare the Rome Statute, an international treaty by which the International Criminal Court was established in 1998, with the Czech constitutional and criminal law. The Czech Republic ratified the Rome Statute in 2009. The Czech Republic committed itself by this ratification to provide for international judicial cooperation and legal assistance to the International Criminal Court. It is necessary to realize that a lot of crimes against international criminal law happen in the today's world and many of these crimes are under the jurisdiction of the International Criminal Court. The Czech Republic has to be ready to act, if the need occurs, a so it is necessary to know how the Czech authorities would proceed and if all of the obligations under the Rome Statute are possible to be realized in accordance with the national law. For this reason this thesis attempts to clarify the link between the Rome Statute and the relevant Czech legislation. So I have made a comparison of the Rome Statute and Czech legal system and tried to find answers for the following questions: whether the Rome Statute is in accordance with the constitutional order of the Czech Republic,...

Em conformidade com o direito internacional penal e o direito internacional dos direitos humanos, a presente dissertação de mestrado tem como objetivo verificar se o exercício da competência repressiva universal pelos tribunais nacionais constitui um mecanismo da justiça internacional penal capaz de auxiliar na promoção e na proteção dos direitos humanos. Para responder a esta indagação, três fontes do direito internacional foram analisadas neste estudo: a doutrina, a jurisprudência e a prática dos Estados. Neste sentido, além da exposição teórica, procedeu-se à análise dos principais casos em que o instituto foi aplicado e à pesquisa da legislação de alguns países sobre o tema. Este estudo verificou como a competência repressiva universal está inserida no momento de transição do direito internacional penal desencadeado pela crescente afirmação dos direitos humanos. / According to international criminal law and to international human rights law, this thesis aims to verify if the exercise of universal jurisdiction by national courts represents a mechanism of the international criminal justice able to promote and to strengthen human rights. In order to answer this question, three sources of international law were investigated: the teachings of publicists, judicial decisions and the internal law of some countries. This study assumed there is a transition going on in international law caused by the advances of human rights and analyzed how universal jurisdiction relates to it.

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.