Doctor Legum - LLD / This contribution looks at the relevance of conspiracy in international criminal law. It establishes that conspiracy was introduced into international criminal law for purposes of prevention and to combat the collective nature of participation in commission of international crimes. Its use as a tool of accountability has, however, been affected by conflicting conceptual perceptions of conspiracy from common law and civil law countries. This conflict is displayed in the decisions on conspiracy by the international criminal tribunals, and finally culminates into the exclusion of punishment of conspiracy in the Rome Statute. It is questionable whether this latest development on the law of conspiracy was a prudent decision. While the function of conspiracy as a mode of liability is satisfactorily covered by the modes of participation in the Rome Statute, its function as a purely inchoate crime used to punish incomplete crimes is missing. This study creates a case for inclusion in the Rome Statute, punishment of conspiracies involving international crimes that do not extend beyond the conceptual stage, to reinforce the Statute’s purpose of prevention. This conspiracy should reflect the characteristics of conspiracy acceptable under both common law and civil law systems. This means excluding the far reaching and often problematic characteristics exemplified in the common law conspiracy.

1 Summary This thesis deals with the United Nations International Criminal Tribunals and their interpretation of the crime of genocide. There are two United Nations courts: The International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda. These ad hoc Tribunals were the first international Tribunals since the Nuremberg and Tokyo trials. They were established by Security Council Resolutions in accordance with Chapter VII of the United Nations Charter as subsidiary organs of the Security Council. The Tribunals were the first international bodies which, after almost 50 years of existence, interpreted and applied the Convention on the Prevention and Punishment of the Crime of Genocide which was adopted by United Nations General Assembly in 1948. Their practice has shown the whole world that individuals can be charged with the crime of genocide and consecutively sentenced. The purpose of this thesis is to briefly describe the historical development of the international criminal justice until the establishment of these two United Nations International Criminal Tribunals, characterize both Tribunals and find out how they interpret the crime of genocide and the contribution of their case law to the international criminal law. The thesis is divided into five chapters. The...

- Sexual Violence against Women in Armed Conflicts - the Role of the International Criminal Tribunals The purpose of my thesis is to describe and analyse a development of a regulation in the international humanitarian law and international criminal law and the contribution of decision making of international criminal tribunals in former Yugoslavia and Rwanda with a special focus on sexual violence against women during armed conflict. The reason for my research is the fact that during armed conflict women worldwide are permanently exposed to danger of sexual violence and it is necessary to stress this issue continuously. The thesis is composed of seven chapters. Chapter One is introductory and describes the current state of sexual violence in armed conflict. Further it explains what fields of international law the sexual violence is subject to and it provides a structure of the thesis. Chapter Two examines the international humanitarian law. The chapter is subdivided into four parts. Part One deals with the international humanitarian law in general. Part Two characterises the specificity of sexual violence. Part Three analyses the development of norms protecting women under international humanitarian law until the adoption of the Geneva conventions in 1949. Part Four analyses the regulation in the...

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.

International criminal tribunals rely on international support. However, in the case of the ICTY and the ICTR, international support has been uneven. I argue that this uneven support is related to the post-atrocity status of the domestic governing authority. In cases where the governing authority retains the status of victim, as in Rwanda following the 1994 Tutsi genocide, the international community has been reluctant to back the ICTR in its attempts to prosecute all participants of the 1994 genocide. In cases where the governing authority retains the status of perpetrator, as in Serbia following the Bosnian genocide of the 1990s, the international community has been more supportive of the ICTY. In cases where the post-atrocity status is mixed, as in Croatia, the backing of the international community of the ICTY has been similarly mixed.

<p>Sexual violence leaves the victims psychologically traumatised and stigmatised in the eyes of its community. Used on a large scale, sexual violence can destabilise a society as a whole and when used during armed conflicts, it serves as a powerful weapon against members of a community. During armed conflicts, sexual violence is widespread and systematically used as a tool of war and this makes sexual violence amount to crimes against humanity, genocide and war crimes. This research paper critically analyses and evaluates sexual violence as an international crime, as well as its prosecution under international criminal law mainly by the International Criminal Court (hereafter ICC), International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY) and International Criminal Tribunal for Rwanda (hereafter ICTR). It discusses the problem of selectivity that can be observed in prosecuting sexual violence that has in fact, left many victims of sexual violence dissatisfied. By doing so, it analyses the law as it is to determine whether the law applied during sexual violence prosecutions is sufficient. The paper also states recommendations that can contribute to the effective prosecution of sexual crimes under international criminal law.</p>

<p>Sexual violence leaves the victims psychologically traumatised and stigmatised in the eyes of its community. Used on a large scale, sexual violence can destabilise a society as a whole and when used during armed conflicts, it serves as a powerful weapon against members of a community. During armed conflicts, sexual violence is widespread and systematically used as a tool of war and this makes sexual violence amount to crimes against humanity, genocide and war crimes. This research paper critically analyses and evaluates sexual violence as an international crime, as well as its prosecution under international criminal law mainly by the International Criminal Court (hereafter ICC), International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY) and International Criminal Tribunal for Rwanda (hereafter ICTR). It discusses the problem of selectivity that can be observed in prosecuting sexual violence that has in fact, left many victims of sexual violence dissatisfied. By doing so, it analyses the law as it is to determine whether the law applied during sexual violence prosecutions is sufficient. The paper also states recommendations that can contribute to the effective prosecution of sexual crimes under international criminal law.</p>

Magister Legum - LLM / Sexual violence leaves the victims psychologically traumatised and stigmatised in the eyes of its community. Used on a large scale, sexual violence can destabilise a society as a whole and when used during armed conflicts, it serves as a powerful weapon against members of a community. During armed conflicts, sexual violence is widespread and systematically used as a tool of war and this makes sexual violence amount to crimes against humanity, genocide and war crimes. This research paper critically analyses and evaluates sexual violence as an international crime, as well as its prosecution under international criminal law mainly by the International Criminal Court (hereafter ICC), International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY) and International Criminal Tribunal for Rwanda (hereafter ICTR). It discusses the problem of selectivity that can be observed in prosecuting sexual violence that has in fact, left many victims of sexual violence dissatisfied. By doing so, it analyses the law as it is to determine whether the law applied during sexual violence prosecutions is sufficient. The paper also states recommendations that can contribute to the effective prosecution of sexual crimes under international criminal law. / South Africa

"This study will demonstrate how the ICTR is developing and enforcing international humanitarian law (IHL). Already it has successfully sent out a clear message to leaders worldwide that gross human rights violations of this nature will no longer go unpunished, providing a form of deterrence. The ICTR continues to develop a rich jurisprudence on IHL that will be examined in this study. Being the first international tribunal to convict a person of genocide, the first to recognise rape as an element of genocide, and to try a woman for the crime of genocide, the ICTR jurisprudence will prove invaluable. The rules of procedure adopted by the ICTR that have greatly facilitated bringing to justice high ranking officials shall also be examined. The study will contribute to the ongoing discussion on the role of the ICTR in developing and enforcing IHL. The study will specifically give insight on how the ICTR helps the development of IHL from an African perspective, thus contributing to ending impunity not only in Rwanda but in Africa as a whole. ... Chapter two will give a background to the 1994 genocide in Rwanda, which led to the establishment of the ICTR. This section will discuss the jurisdiction, structure, and procedures of the ICTR. Chapter three will examine the development and nature of IHL and the problems regarding its enforceability. Chpater four will address the contribution made by the ICTR to the development and enforcement of IHL. Chapter five will offer some concluding remarks." -- Chapter 1. / Supervised by Mr. Emmanuel Yaw Benneh at the Faculty of Law, University of Ghana / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2001. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

Das Verfahren der internationalen ad hoc Strafgerichtshöfe für das ehemalige Jugoslawien und für Ruanda kann als die erste völkerstrafverfahrensrechtliche Ordnung betrachtet werden. Von den Richtern selbst ausgearbeitet und entwickelt, orientierte sich dieses Verfahren ursprünglich sehr an dem angloamerikanischen Strafprozessmodell. Mangels geeigneter Präzedenzfälle und angesichts der vielen Analogiefaktoren zwischen dem innerstaatlichen Strafverfahrensrecht und dem Völkerstrafverfahrensrecht haben sich die Richter -insbesondere während der ersten Tätigkeitsjahre ihrer Gerichtshöfe- öfter auf innerstaatliche Rechtspraxen bei der Anwendung ihrer Verfahrens- und Beweisordnungen bezogen. Die vorliegende Arbeit untersucht diese Bezugnahme auf innerstaatliches Recht anhand der Rechtsprechung beider ad hoc Strafgerichtshöfe im Bereich des Beweisrechts. Die Gründe und Formen der Bezugnahme auf innerstaatliches Recht werden zuerst dargestellt und anschließend analysiert. Aus der Untersuchung der Rechtsprechung ergibt sich eine insgesamt unsystematische und pragmatische Nutzung des innerstaatlichen Rechts, welches meistens dazu dient, die für den Einzelfall geeignetste Lösung zu liefern und/ oder die von den Richtern getroffene Entscheidung zu legitimieren. Solch eine Vorgehensweise birgt zweierlei Probleme: Ein Legitimitätsproblem angesichts der Internationalität des Verfahrens der ad hoc Strafgerichtshöfe und ein Problem hinsichtlich der Vorhersehbarkeit der Anwendung ihrer Verfahrens- und Beweisordnungen. Abschließend widmet sich diese Arbeit dementsprechend der Frage nach einer methodischen Herangehensweise, welche zu mehr Legitimität und Vorhersehbarkeit bei der Anwendung der Verfahrensregeln internationaler Strafgerichtshöfe beitragen könnte, und dies abgesehen davon, ob sich die Richter dabei auf externe normative Räume, wie diejenigen innerstaatlicher Rechtsordnungen, beziehen oder nicht. / The procedure of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda can be regarded as the first set of rules of international criminal procedure. This procedural law, constructed and developed by the judges themselves was primary inspired by the common law approach to criminal proceedings. In the absence of precedents, and given the numerous potential analogies between domestic criminal procedure and international criminal procedure, the judges often referred to domestic legal practices - particularly during the ad hoc tribunals’ first years of activity - when applying rules of procedure and evidence. The present work investigates this reference to domestic law by examining the ad hoc tribunals’ jurisprudence regarding the law of evidence. The reasons for and forms of the reference to domestic law are first presented and then analysed. This study concludes that, on the whole, domestic law is referred to in an unsystematic and pragmatic manner: It is mostly used by the judges in order to provide the most suitable solution for the particular case before them and/ or to legitimate a decision they have already made on the basis of their own procedural rules. Such an approach raises two problems: a legitimacy deficit in regard to the internationality of the ad hoc tribunals’ procedure and a lack of predictability in the application of the rules of procedure and evidence. This study deals therefore finally with the possibility of a methodical approach, which could contribute to more predictability and legitimacy in the application of the procedural rules of international criminal tribunals, regardless of whether or not the judges refer to external normative systems, such as domestic legal orders.