This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.

South Africa‘s high prevalence of HIV/AIDS coupled with a high crime rate and incidence of sexual violence necessitated the enquiry and study into the role of criminal law to address the wilful transmission of HIV.1 This study shows that criminal law can be used to punish offenders for wrongdoing and therefore finds application in the wilful transmission of HIV.2 The study distinguishes the dividing line between the justifiable use of criminal law and where use of the criminal law becomes discriminatory in nature and counterproductive to public health measures. The United Nations (hereinafter referred to as the UN) laid down guiding principles for countries to adopt when using the criminal law and stated that countries should use existing criminal law offences to prosecute intentional HIV infections.3 The South African Law Commission (hereinafter referred to as the SALC) endorses this approach. South Africa‘s use of the criminal law, in response to harmful HIV behaviour is in line with the UN recommendations as it uses the existing common law offences to prosecute the wilful transmission of HIV, namely murder, attempted murder and assault. Drawing from the writer‘s comparative study in Chapter Six below, South Africa, members of the Zimbabwean parliament, Canada, as well as the American Bar Association have all concluded that the use of specific HIV-related legislation creates some a form of stigmatization towards people living with HIV and is therefore not warranted. This study shows that criminal law has a role to play in the wilful transmission of HIV; however the creation of HIV specific legislation is not recommended and existing criminal law offences should be used to address harmful HIV related behaviour. Such an approach is in line with the guiding principles laid down by the UN and SALC.

The study explores the experiences of men who perpetrated violence against women in the domestic sphere. The study’s overarching concern is that violence has been largely seen as a women’s problem and not an issue that is central to men and yet in most cases are the perpetrators of this violence. Consequently, men have not been targeted in initiatives that curb domestic violence (Salo, 2005). It is in this frame of reference that this study saw it imperative to focus on the male perspective of gender violence. The study aims to find factors that contribute to male violence and in turn recommend practical and appropriate strategies of dealing with male violence perpetrators. The study drew its theoretical framework largely from the feminist theory, systems theory and the social learning theory in-order to gain insight into the different frameworks for making judgement about male violence against women. Feminists hold the view that, starting with people’s experiences is a powerful tool that provides the rational for their studies. The study was therefore qualitative in nature as it sought to gather men’s experiences of violent against their spouses; semi-structured interviews were utilized during data collection. A purposive sampling method was utilised to select ten men who were known to have perpetrated violence against their partners and five key informants with special knowledge on domestic violence. The research was conducted through the Department of Social Development in Alice in the Eastern Cape, which facilitated a trusting relationship between the researcher and its clients. The findings established that violence is used to maintain control and power over women. Men invoked hegemonic discourses as violence is employed as an instrument to suppress women, mostly in instances were women question their prerogatives and undermine their authority. It was evidenced that cultural practices such as ‘lobola’ (dowry) usually contribute to men’s use of violence. Most of the respondents understood violence from the physical dimension only, as violence was equated to beating and slapping. Added to that was the respondents’ inadequate understanding of domestic violence laws and legislation. The study also established that social service providers seem not to have concrete procedures and capacity to deal with perpetrators of domestic violence. In light of the problems discussed, the study recommends effective counseling and educational programs, policy improvement, capacitation of service providers and the criminal justice system and further research as strategies for dealing with male violence in the Nkonkobe District.

This thesis represents a selective consideration of the relationships between gender, space and the law in early twentieth century Vancouver, based largely on the cases of sexual violence against women heard before the B.C. Supreme Court in the years between 1915 and 1925. Within these parameters, constructions of space and gender are addressed at three levels. Part one considers how both women and men were situated within early twentieth century legal discourse in the context of trials for sexual violence. Part two suggests how gendered understandings of urban space in early urban Vancouver were produced and reinforced within, and beyond, legal discourse. Finally, part three situates these processes within a wider context of statemaking in early twentieth century British Columbia. It is argued that legal processes were one mechanism by which space in fledgling Vancouver was coded in gendered and sexualized terms, and further, that these social meanings of space were fundamentally bound up with prevailing conceptions of race and class. / Arts, Faculty of / Geography, Department of / Graduate

Topic of this thesis is the Responsibility to Protect (R2P) doctrine that has become very current at the present time because of its use in legitimising the operation of NATO and other countries during the uprising in Libya in 2011. Apart from a number of sympathetic opinions, it has caused a wave critique, which has been of two types. Some criticised even the fact itself that the UN Security Council had labelled the Libya situation as a case suited for the application of this doctrine. There were also those who had agreed wholeheartedly with this designation, but who were disappointed by how the operation that followed had proceeded. This section of critics claims that NATO and other states that took part in the operation overstepped the mandate granted to them by the Security Council and thereby caused at least a partial delegitimising of R2P.

No description available.

"Rwanda was largely destroyed in 1994. Among an endless host of problems, highly complex questions and dilemmas of justice, unity, and reconciliation haunt Rwanda to this day. A basic question confronting Rwanda is how to deal with the legacy of the conflict that culminated in the genocide of the Tutsi and in the massacres of Hutu opponents of the genocide. The UN set up an International Criminal Tribunal in Arusha, Tanzania, and Rwanda has its own courts. In both cases, the process of trying accused genocidaires is long, laborious, and frustrating. Only eight convictions have been handed down in Arusha after five years of work, while in Rwanda only some 3,000 cases have been disposed of. At least 120,000 detainees are in prisons around the country, the vast majority of whom are accused of participation in the genocide. At the present rate it is estimated that it will take anywhere between two and four centuries to try all those in detention. The Rwandese government has developed a new procedure called “gacaca,” lower-level tribunals that attempt to blend traditional and contemporary mechanisms to expedite the justice process in a way that promotes reconciliation. The impact of gacaca remains to be seen, and as a process, it certainly needs an evaluation or, at least, an attempt to evaluate its possible contribution to the perplexing questions of justice, unity and social reconstruction in the aftermath of genocide. This paper mainly aims to analyse the draft legislation on the gacaca jurisdictions. Further, this essay attempts to examine the impact of criminal trials in the aftermath of mass violence and genocide. Although conventional wisdom holds that criminal trials promote several goals, including uncovering the truth; avoiding collective accountability by individualising guilt; breaking cycle of impunity; deterring future war crimes; providing closure for the victims and fostering democratic institutions, little is known about the role that judicial intervention have in rebuilding societies. The present essay deals only with criminal trials. By definition, these are focused on the perpetrators of abuses and their allies. Although not examined in the essay, a comprehensive and holistic approach to dealing with a legacy of past atrocities should also include range of victim-focused efforts, such as programs for compensation and rehabilitation, the establishment of memorials, and the organisation of appropriate commemorations. The main sources of this study are textbooks, articles from journals and official documents of national and international bodies. Since this essay aims at evaluating the gacaca proposals, a great deal of attention is paid to the terms of the draft legislation. It is certainly premature to make an in-depth assessment of a draft law and the merits and flaws of the legal institution it is designed to set up. Only gradually and over a period of time can the gacaca become effective and credible. Further research aimed at gathering data through interviews, field observations, participant observation, study and analysis of the implementation can also illuminate experience in ways that analysis of published sources do not. A thorough and sound appraisal of this new institution must therefore wait some time. I shall nevertheless attempt in this essay to set out some initial and tentative comments on some of the salient traits of the future gacaca tribunals. This paper makes a preliminary “human rights impact assessment” of the implementation of the draft law establishing “gacaca jurisdictions”. The potential role of the new institution in rebuilding the Rwandese society is also discussed. Considering the many complex issues which still surround the process of justice in Rwanda six years after the genocide, as well as the continuing challenge to the judicial system in terms of the inadequacy of resources for dealing with such an enormous caseload, recommendations to help the process follow the analysis of the gacaca proposals (Chapter Three). To end impunity, it is necessary to respond in accordance with human rights law to the genocide and mass killings. Therefore, the starting point for our evaluation of the gacaca proposals will be an analysis of the proposals in human rights law. Does human rights law impose any affirmative duties to punish genocide and other mass killings that occurred in Rwanda? In addition, for the “gacaca jurisdictions” to be effective, they should not be viewed in isolation, as their performance will depend to a large extent on whether other judicial mechanisms and institutions are functioning properly. The relationships between the gacaca jurisdiction and other mechanisms are thus reviewed. In particular, the process of setting up the gacaca jurisdictions should include an evaluation of the genocide trials which have taken place to date both at the International Criminal Tribunal for Rwanda and in the domestic courts and apply the lessons learnt (Chapter Two). An evaluation of the potential contribution of the use of gacaca courts needs to be put into the broader context of the conflict in Rwanda. Thus, an analysis of the conflict in Rwanda is necessary to grasp the challenges facing the questions of justice and social reconstruction in the aftermath of genocide in Rwanda (Chapter One)." -- Introduction. / Prepared under the supervision of Professor Jeremy Sarkin, Faculty of Law, University of the Western Cape / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2000. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

"In response to President Kabah's request of June 2000, the United Nations Security Council called on the Secretary-General to negotiate an agreement with the government of Sierra Leone for the creation of a special court for Sierra Leone (hereafter SCSL), to investigate the atrocities committed within the country, by Resolution 1315 of 14 August 2000. Under the agreement concluded in February 2001, the SCSL has jurisdiction over crimes against humanity, war crimes and other serious violations of international humanitarian law committed since November 1996. The author assesses in detail the efficacy of the SCSL in dispensing justice up to date. The author concludes that, although the SCSL has accomplished much, it has shortcomings and faces changes that hamper the attainment of its objectives. ... This study is divided into five chapters. Chapter one provides the context in which the study is set, the focus and objectives of the study, its significance and other preliminary issues, including a statement of the problem and the literature review. Analysis of the conflict in Sierra Leone are necessary to grasp the graveness and the nature of the human rights violations and to understand the nature and extent of justice already meted out. Chapter two focuses particularly on the historical background of the conflict and the reasons that necessitate the establishment of the SCSL. The SCSL was established specifically to respond to human rights abuses committed during the civil war in Sierra Leone. Chapter three examines the major achievements of the Court in dispensing justice, and chapter four identifies the shortcomings and the challenges that confront the Court in its aim to fulfil its mandate." -- Chapter one. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2006. / Prepared under the supervision of Professor Lovell Fernandez, Faculty of Law, University of the Western Cape / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

Examines the situation of child victims through a human rights perspective and identifies the existing legal framework in the international and regional environment. Furthermore, this study seeks to raise awareness about the illegality and harmful consequences of all forms of child trafficking. Also discusses the necessity to take appropriate criminal as well as administrative action, at all levels, to effectively prohibit and penalise child trafficking. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2007. / A Dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Professor Julia Sloth-Nielsen of the faculty of Law, of the University of the Western Cape, Cape Town, South Africa. / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM

The thesis deals with the question, in which situation the International Criminal court would probably open an Investigation of such crimes by an international body is a delicate question mainly with regard to a great extend of intervention into a state sovereignty, which manifests itself also as jurisdictional sovereignty. The thesis focuses on the case of Kenyan post-election violence in years of 2007 and 2008 and the aim to suppress Libyan revolution of 2011. Besides, the work is based upon the theory of (liberal) institutionalism, which could hopefully be applied to the international-law case of investigation of the crimes committed outside an armed conflict. Within the framework of the thesis I try to reveal criteria determining whether the International Criminal court opens or not an investigation to a situation of human rights abuse. For the purpose I take into consideration world and local country status, character of the perpetrators, extend of the attacks, country's relation to the great powers, as well as readiness of the country to prosecute the perpetrators within the national jurisdiction. As conclusion I try t compare the findings from the part applying liberal institutionalism and from the case studies.