Browsing by Author "Fernandez, L"

Now showing 1 - 5 of 5
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    The competence of the International Criminal Court with regard to witnesses.
    (University of the Western Cape, 2014) Tolksdorf, Franziska; Fernandez, L
    This research paper examines whether the International Criminal Court has the competence to compel the appearance of witnesses before it, and if the States Parties to the Rome Statute have an obligation to serve and enforce a witness summons issued by the Court. In December 2013 the Office of the Prosecutor requested the International Criminal Court to summon witnesses and ascribed to the Court the power to order some States Parties to enforce witness summonses. The defence counsel in the particular case and the Kenyan government, the requested State Party, opposed the request. In April 2014 Trial Chamber V (A) of the International Criminal Court delivered a decision on that matter in which it found that it had indeed the power to compel witnesses and to order Kenya to enforce the summonses. The decision was confirmed on appeal in October 2014. This paper analyses the issue with reference to the decision of the Trial Chamber, the judgement of the Appeals Chamber, and the assertions by the parties in the present case. It also introduces other approaches on how to deal with this issue. The paper essentially analyses the text of the Rome Statute, the history of its drafting, and compares the enabling laws and jurisdictional competence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone with regard to the theme under discussion. The paper furthermore analyses how the domestic laws of some states deal with the matter. Finally it examines the measures that the ICC can implement to enforce its orders.
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    The impact of anti-money laundering legislation on the legal profession in South Africa
    (University of the Western Cape, 2015) Hamman, Abraham John; Fernandez, L
    This thesis investigates the legislative measures employed in South Africa to combat the implication of lawyers in money laundering schemes. Criminals make use of sophisticated technological means to transfer money and launderers routinely approach lawyers to assist them in their illegal endeavours. The legal profession is almost tailor-made for abuse by launderers, because lawyers work with huge amounts of money, clients are entitled to legal professional privilege and the right to legal representation is guaranteed constitutionally. The South African anti-money laundering regime, for the most part, is contained in two statutes, the Financial Intelligence Centre Act (FICA) and the Prevention of Organised Crime Act (POCA). Whilst FICA and POCA require the legal profession to be vigilant and accountable in the fight against money laundering, unfortunately they also infringe on hard-won rights, such as legal professional privilege, the right to legal representation and attorney-client confidentiality. The study considers South Africa’s efforts to fulfil its international anti-money laundering obligations whilst upholding the criminal procedural rights guaranteed in the Constitution. It is suggested that certain sections of FICA and POCA fail to find the required balance between protecting citizens from the harms of money laundering and protecting the fundamental rights of attorneys and their clients. Lawyers are in a unique position of trust and in some instances have access to information that may incriminate their clients. Unfortunately, in its quest to combat money laundering, Parliament did not consider seriously enough the position of lawyers and took the easy option of criminalising fees paid with tainted funds, as well as the non-submission of suspicious transaction reports (STRs) and cash transaction reports (CTRs). As a result, the South African legal profession is saddled with unacceptable constraints.
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    Justice, truth and reconciliation under Rwandan domestic courts: specific reference to the Gacaca courts
    (University of the Western Cape, 2001) Katushabe, Justine B; Fernandez, L
    lmmediately after the 1994 genocide in Rwanda, the government of national unity faced the onerous task of reconstructing a country laid desolate by the forces of genocide.The infrastructure was destroyed, and human resources decimated. The Government also had the difficult task of bringing the perpetrators of genocide to justice, thus breaking the culture of impunity that has characterized Rwanda for over 30 years. At the same time, the new Government had to build the foundations for a stable, inclusive society, based on tolerance, respect for fundamental human rights, and dedicate itself to promoting national unity and reconciliation.
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    Religious persecution as a crime against humanity: ending impunity
    (International Institute for Religious Freedom, 2013) Fernandez, L
    Religious persecution manifests itself in various harmful ways. Traditional intervention strategies are useful but limited. The article explores the need to reinforce the combating of religious persecution with the increased use of international justice mechanisms. In particular, the article studies how the crime against humanity of persecution can be used to hold religious persecutors accountable under international criminal law.
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    United Nations peacekeeping and international humanitarian law
    (UWC, 2002) Williams, E; Fernandez, L
    The end of the Cold War created the expectation that the international community will be able to deal with any challenges to international peace and security more effectively. However, these expectations were dispelled, given the experiences in some war-tom countries. The uN peacekeeping forces are mainly faced with problems such as the shift from interstate to intrastate conflict and the related challenges of how, by whom, and when intervention in civil strife will be justifiable. one of the key questions is whether there will be the necessary political will and organizational effectiveness to diffuse the types of conflicts that threaten international peace.