A presente dissertação de mestrado analisa a atuação do Tribunal Penal Internacional para Ruanda, corte com sede na Tanzânia, criada sob os auspícios da ONU e encarregada de processar as pessoas responsáveis por sérias violações ao Direito Internacional Humanitário cometidas durante o genocídio da população tutsi organizado por membros do governo e do exército de Ruanda em 1994, e que vitimou mais de 800.000 civis. Estuda-se a evolução do Direito Internacional Penal ao longo do século XX até a criação do Tribunal e a história e a organização política de Ruanda até a eclosão da guerra civil e do genocídio. Apresenta-se a estrutura, a competência e a dinâmica dos julgamentos, promove-se o estudo de quatro casos paradigmáticos julgados, e verificam-se os resultados concretos alcançados pelo Tribunal para impedir a impunidade, apontando este órgão judicial como importante precursor do Tribunal Penal Internacional criado pelo Estatuto de Roma em 1998. O trabalho também ambiciona perpetuar a lembrança de um dos maiores massacres da história, comparável ao próprio Holocausto, e o tratamento dado pelo Direito e pela comunidade internacional ao episódio / This dissertation examines the performance of the International Criminal Tribunal for Rwanda, Tanzania-based court, created under the auspices of the UN, in charge of prosecuting people responsible for serious violations of International Humanitarian Law committed during the genocide of the Tutsi population, organized by members of the government and the army of Rwanda in 1994, which killed over 800,000 civilians. It is studied the evolution of International Criminal Law over the twentieth century until the establishment of the Court, and also the history and the political organization in Rwanda until the outbreak of civil war and genocide. This dissertation presents the structure, competence and dynamics of the trials, promotes the study of four paradigmatic cases tried, and verifies the concrete results achieved by the Court to prevent impunity, pointing this judicial body as an important forerunner of the International Criminal Court created by the Rome Statute in 1998. The study also aspires to perpetuate the memory of one of the greatest massacres in history, comparable to the Holocaust itself, and treatment given by the law and by the international community to the episode

Magister Legum - LLM / The first part of this study evaluates the historical events that led to the referral of the DRC situation to the ICC. This includes the background of the conflict and the extent to which international crimes have been committed. Both regional and domestic attempts and initiatives to address the conflict are discussed, with specific reference to peace agreements and restorative justice mechanisms. The second part of the study deals with the prosecution of the perpetrators by the ICC. It examines the approach of the Pre- Trial Chamber to two legal issues, the principle of complementarity and modes of criminal participation as part of the ICC Statute. In this regard, the study makes a critical evaluation of two preliminary decisions confirming the charges against Lubanga, Katanga and Chui before the cases proceeded to the trial stage. / South Africa

Magister Legum - LLM / This paper analyses head of state immunity, a traditional rule of international law, in relation to the indictments by the International Criminal Court (ICC) in 2009 against the current Sudanese President Omar Hassan Ahmad Al Bashir. It can be agreed that the doctrine of immunity in international law attempts to overcome the tension between the protection of human rights and the demands of state sovereignty. The statutes and decisions of international criminal courts make it clear that no immunity for international crimes shall be attached to heads of states or to senior government officials. However, the case against the Sudanese President, where the jurisdiction of the ICC was triggered by the UN Security Council‟s referral of the situation in Darfur to the Court, represents the first case where a serving head of state has, in fact, been indicted before the ICC. From this case, a number of legal issues have arisen; such as the questions where the ICC‟s jurisdiction over an incumbent head of state, not party to the ICC Statute, is justified, and the obligations upon ICC state parties to surrender such a head of state to the requesting international criminal court. This paper gives an analysis of these questions. / South Africa

Magister Legum - LLM / Kenya’s December 2007 Presidential elections sparked a wave of violent clashes over allegations of election rigging. The protests broke out along ethnic lines, causing greater civil unrest. There have been allegations that during these outbreaks of violence crimes against humanity were committed. This violence attracted world-wide concern and was universally condemned. Kenya is loathe to prosecute the perpetrators or those who bear the highest responsibility for the alleged commission of crimes against humanity. It has instead established a national investigatory mechanism, the Kenyan Truth, Justice and Reconciliation Commission (hereafter TJRC). This approach adopted by Kenya has been criticized for the fact that it fosters a culture of impunity. However, the Prosecutor of International Criminal Court (hereafter ICC) has used his proprio motu powers to initiate an investigation of alleged commission of crimes that fall within the jurisdiction of the Court. This research paper has analysed the reasons for the proprio motu intervention of the ICC in Kenyan situation. It also examined whether Kenya was unwilling or genuinely unable to prosecute the perpetrators of the post-election violence of 2007. Furthermore, the paper evaluated the provisions of the Kenyan TJRC, the major shortcomings of the Commission and the challenges it is facing in fulfilling its mandate. In conclusion the paper analysed the relationship between TJRC and ICC and re-evaluate any role that the two bodies could play in dispensing justice in Kenya. But before that, the paper laid down the factual background that led to the proprio motu interevention of the ICC in Kenya where a truth commission had alreday been established. / South Africa

Magister Legum - LLM / This research paper is an analysis of the case United States v Flick et al which took place in 1947 in Nuremberg, Germany. Friedrich Flick, a powerful German industrialist, and several high ranking officials of his firm were tried by a United States military tribunal for war crimes and crimes against humanity committed during the Third Reich. The proceedings and the decision itself are the subject of a critical examination, including an investigation of the factual and legal background. The trial will be regarded in the historical context of prosecutions against German industrialists after World War II. Seen from present-day perspective, the question will be raised whether any conclusions can be drawn from the Flick case in respect of the substance of present-day international criminal law. / South Africa

Magister Legum - LLM / With regard to the establishment of legislative frameworks for investigating and prosecuting genocide, crimes against humanity and war crimes at both national and international level, a number of pertinent issues come up concerning the Court which should have primacy to deal with a particular case. States have had a variety of options at their disposal, such as complementarity, exclusivity, subsidiarity and concurrent jurisdiction principles. As a rule, these experiences find their limits in the full criminalisation of conduct that is also punishable before the international criminal tribunals under international law, ignoring the fact that international law does not provide definite guidance with respect to a number of questions in relation to interaction between national and international jurisdiction vis-à-vis the ‘core crimes.’ In addition,a considerable increase in the content of international law and divergences in various legal systems in criminal law, both general and special, since the end of World War II, influence the effective prosecution of ‘core crimes.’ Against this background; this work is organised into five chapters. Chapter one gives a general introduction and background to the study. Chapter two will set out the present international legal framework governing the prosecution of ‘core crimes’ in national courts and a description of the relevant practice in various states. Chapter three will examine critically the jurisdiction and overlaps of the international courts and ad hoc tribunals,along with the corresponding models of international criminal justice of exclusivity, subsidiarity, complimentarity and concurrent jurisdiction. Chapter four seeks to discuss the optimal relationship based on interactions between national and international jurisdictions. It will also include the merits and limits of both jurisdictions, basing on existing precedents and legislation.Finally, Chapter five contains a summary of conclusions drawn from the whole study and winds up with a set of recommendations.

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.

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.

"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