Magister Legum - LLM (Criminal Justice and Procedure)
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Item War crimes under international customary law: the historical development and the legal issues(University of the Western cape, 1999) Unseld, Oliver; Fernandez, LovellWar is characterizedby outburst of primitive, raw violence and has always played an important role in the history of mankind. When states or groups within a state cannot or will not settle their disagreements or differences by means of peaceful discussion, eapons are suddenly made to speak' War inevitably results in immeasurable uffering among people and in Severe damage to objects. l Despite the consequences of ar, states continue to wage wars and groups still take up weapons when they have lost hope of just treatment at the hands of the government. Facing the fact that wars will always occur, states developed a need to lay down rules that seek to mitigate the effects of war. These rules are predominantly included in international treaties. Some of these rules constitute war crimes under international customary law. This dissertation will discuss the historical development and the legal issues of war crimes under international customary law. Discussing all issues conceming war crimes would be beyond the scope of this dissertation. ln some aspects, this dissertation provides just an overview. ln short, the definition of war crimes and their applicability are discussed right at the beginning, as well as the historical development of war crimes before the 20th century. Also the topic "war crimes committed in international conflicts" is not discussed in detail. However, the most important issues that are essential for the understanding of war crimes in general are explained and sufficient information is provided on this topic. The emphasis of this dissertation is focuses on two very important and very actual issues: War crimes committed in non-international (internal) conflicts and individual criminal responsibility for war crimes committed both in international and non-international conflicts.Item Defining the limits of parliament's powers to intervene in the Exclusive provincial schedule 5 competences in terms of section 44(21of the constitution of south africa act, act no.108 of 1996, With reference to the liquor bill case(UWC, 2000) Enver, Daniels; Steytler, CConstitutional law prescribes how power is exercised by the different branches of government and organs of state. ln a federal state or a unitary state in which there is a devolution of power to the regions, the allocation or distribution of specific powers between the center and the provinces is of fundamental importance. Uncertainty about either legislative authority can lead to chaos and instability and threaten the nation's survival. the powers of each branch of government are clearly spelled out in constitutional states, whether federal or unitary. Generally speaking, infringements of one another's legislative powers are not allowed, except under certain clearly defined circumstances, as will be demonstrated later on herein.Item Justice, truth and reconciliation under Rwandan domestic courts: specific reference to the Gacaca courts(University of the Western Cape, 2001) Katushabe, Justine B; Fernandez, Llmmediately 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.Item Transitional justice in Rwanda a case study of fair trial process(University of the Western Cape, 2001) Osega, Julius; Sarkin, Jeremyln countries undergoing a shift from a repression to democracy, the question of transitional justice presents, in a very conspicuous manner, the first test for the establishment of a real democracy with the rule of law. Rwanda too is caught up in this web and the way forward is being sought. After ousting a regime that organized genocidal killings of at least a million people, if the new government were to undertake prosecution of every person who participated in this heinous butcher, more than 120,000 Rwandan citizens could be placed in the dock - a situation that would be wholly unmanageable and extremely destabilizing of the transition. While each country's experience is not only dramatic but unique, and however relative the mechanisms of accountability and their outcomes may be, that in itself does not and cannot exclude the application of existing international norms and standards which represent the threshold of international legality lt is therefore important that Rwanda should adopt unifying themes common to nations moving from despotism to democracy and lessons that each nation might bring to the others.Item The protection of children from exploitative labour within SADC :Human rights challenges of the regional integration initiative(University of the Western Cape, 2002) Kaime, T; Lenaghan, PChildhood is a time for play, for growth, and for discovery. Sadly, for many of the world's children, the reality is different. They are denied their childhood and with it, their opportunity to develop. They are denied education and protection from hunger, and exposed to disease, abuse and exploitation.l The economic exploitation of children is one example of abuse that is prevalent nowadays and one that has been historically pervasive.2 Everyday, millions of children are engaged in work that stunts their development, and interferes with their education, recreation and rest. Such work is called child labour and is unacceptable under intemational labour and human rights law.3 Child labour is a complex and multifaceted issue that defies simple solutions.a lt involves diverse dynamics and factors which include economics, human rights, trade and labour.s Quick-fix measures are thus bound to fail or to exacerbate the problem. Consequently there is need for thoughtful and comprehensive approaches which are guided by the best interests of the child and by a commitment to children's rights. This contribution is an endeavour in that direction.Item The principle of universal jurisdiction as a tool of international criminal justice: challenges for Africa(University of the Western Cape, 2003) Epimaque, Rubango K.; Fernandez, LopellThe subject of universal jurisdiction is of great relevance to all who work for human rights. I regard the search for ways to end impunity in the cause of gross violations of human rights as an essential part of the work of my Office and an essential instrument in the struggle to defend human rights... ln my daily work as High Commissloner for Human Rights, I see many situations involving gross, and sometimes widespread, human rights abuses for which the perpetrators often go unpunished, These disturbing trends have given me cause to reflect on the possibilities for alternative means of securing .justice and accountability.Item WWIII? war on women continues!(University of the Western Cape, 2003) Vezasie, P.N; Van der Poll, Lln the course of this research paper incidence of sexual slavery, sexual violence and rape during times of war will be examined. The incidence where systematic rape is seen as a weapon of war designed to exterminate a particular ethnic group will be highlighted. lt will be argued that systematic rape can be suitably addressed as a form of ethnic cleansing and a form of genocide within the ambit of international human rights lawItem Implementing the Rome statute of the international criminal court domestically: a comparative analysis of strategies in Africa(University of the Western Cape, 2003) Olugbuo, Benson Chinedu; Fernandez, LovellOn 17 July 1998, a total of 120 states voted to adopt the Rome Statute of the International Criminal Court (Rome Statute) 1 in a UN sponsored conference in Rome. The International Criminal Court (ICC or 'the Court') has jurisdiction to try people accused of such international crimes as genocide, crimes against humanity, war crimes and aggression.2 The Court has power to provide redress to victims and survivors of these crimes and some argue that the mere presence of the ICC has a deterrent effect on future dictators and their collaborators. 3 Also the Court has potential to advance the rule of law internationally, for example, by obliging States Parties to investigate and prosecute those indicted, thus strengthening the ability of national jurisdictions to bring to justice perpetrators of these heinous crimes. With the entry into force of the Rome Statue in July 20025 and the election of judges and Prosecutor7 of the Court in 2003, there is need for States Parties to the Rome Statute to enact laws to incorporate the crimes defined in the treaty. Currently, 92 States are Parties to the treaty. 8 The success of the ICC will depend not only on widespread ratification of the Rome Statute but also on States Parties' compliance with obligations under the treaty. For almost every state this will require some change in national law in accordance with existing laws and proceedings in a given legal system.Item A critical analysis of legislation and policy pertaining to waste management and the control of pollution caused by waste in urban and industrial areas in South Africa(University of the Western Cape, 2003) Maseti, Khayalethu; van Reenan, T.PThe central problem of my research is on how pollution and waste can be controlled and managed in urban and industrial areas. This is worthy of study because if the above said problem is not studied in order to be properly controlled through proper measures, for example, through policy and legislation, its impact on the environment in general (soil, air, water) will worsen. That will not be in compliance with South Africa's international and Constitutional obligations to protect the environment from pollution. The way in which waste should be managed is also part of the problem that must be studied because of South Africa's endorsement of Agenda 21, /CONF .151126(1992) that focuses on strengthening the roles and capacities of local authorities to achieve sustainable development. It is therefore important to know the problems and their causes that are faced by the institutions charged with the implementation of waste management laws in order to solve those problems.Item The enforcement of socio-economic rights in the African human rights system : drawing inspiration from the International Covenant on Economic, Social and Cultural Rights and South Africa's evolving jurisprudence(UWC, 2003) Mbazira, C; Liebenberg, SThe need to protect human dignity, freedom, and equality paved the way for the development of the concept of human rights, from an idealistic assertion of vague principles to the adoption of the comprehensive international normative system now in existence This includes economic, social, and cultural rights with traces in Germany during Bismarck's reign in the 19th Century2 and the Russian Revolution in the 20th Century.3 With the adoption of the Universal Declaration of Human Rights (UDHR)4 they became universally accepted. ln 1966 two covenants were adopted: the International Covenant on Civil and Political Rights (ICCPR),s and the lnternational Covenant on Economic, Social and Cultural Rights (ICESCR),6 the former being dedicated to civil and political rights, and the latter to economic, social and cultural rights.Item Exorcising the antiquity spirit of intolerance : possibilities and dilemmas of decriminalizing sodomy laws in Uganda(UWC, 2007) Singiza, K; de Vos, PThis dissertation proposes various methods to decriminalize same-sex sexual intercourse as an offense in Uganda. Chapter One introduces the problem of the sodomy laws and how it has recently taken center stage in the struggle for human rights in Uganda. The chapter states the problem, the research questions that are proposed to be answered, the objectives of the study, and its scope and methodology. lt points out the possible limitations and reviews the literature on the subject of gay and lesbian rights. Chapter two analyses how gay and lesbian rights can be given effect through constitutional adjudication by reading protection for sexual minorities into the rights to equality, dignity and privacy that are protected in the Ugandan Constitution into three important rights: the rights to equality, dignity and privacyItem The international criminal court and the principle of complementarity: a comparison of The situation in the democratic republic of the congo and the situation in darfur(University of The Western Cape, 2008) Ofei, P.G.S; Koen, RThe purpose of the lnternational Criminal Court (ICC) is to investigate, prosecute and purush the most serious crimes of international concern. These crimes are genocide, war crimes, crimes against humanity and the crime of aggression.r However, paragraph l0 of the preamble to and article I of the Rome Statute of the ICC provide that the jurisdiction of the court shall be complementary to national criminal jurisdictions. This is confirmed by article 17 of the Rome Statute, 'the core provision in relation to complementarity',2 which states that the ICC is able to investigate and prosecute only situations which states are unwilling or unable to investigate or prosecute themselvesItem Conspiracy to commit genocide as understood through jurisprudence of the international criminal tribunal for Rwanda(University of the Western Cape, 2009) Okath, Juliet R.A; Okoth, Juliet R. A.ln 1995, following the atrocious crimes committed in Rwanda, the United Nations Security Council, with Resolution 955, established the international Criminal Tribunal for Rwanda (ICTR) in an effort to hold the alleged perpetrators of these crimes accountable. One unique tool that has been used by the ICTR is the crime of conspiracy to commit genocide lnvestigations by the office of the prosecutor of the ICTR have been carried out on the premise that the atrocities committed in Rwanda constituted one overarching and interconnected crime of genocide.2 lt is believed that for the Rwandan tragedy to have taken place in the presence of a government, its armed forces and an entrenched civil administration, there must have been either a conspiracy of silence or a conspiracy of participation to allow perpetrators to kill.Item A critical appraisal of the criminalisation and prosecution of sexual violence under international criminal law(University of the Western Cape, 2011) Akia, Brenda; Werle, Gerhard; NULLSexual 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.Item Analysis of political corruption trends in transitional states(University of the Western Cape., 2011) Maguchu, Prosper Simbarashe; Fernandez, LovellItem Towards an African International Criminal Court? – assessing the extension of the jurisdiction of the African Court of Justice and Human Rights to cover international crimes(University of the Western Cape., 2011) Kinyunyu, Selemani; Werle, GerhardAfrica seemingly cursed with instability, conflict and gross human rights violations has been the largest scene of operation of international criminal justice. This understanding led African States to be some of the key proponents in the push for an International Criminal Court. Of late however, mounting policy and operational fluxes between African States and international criminal justice has put Africa's relationship with international justice on ice. This in turn has awoken within the region's geopolitical body, the African Union, the need for an exclusively African response to international criminal justice as it is currently considering extending the jurisdiction of the African Court of Justice and Human Rights to cover international crimes. This Research Paper aims to chart the genesis of this move through the decision-making system of the African Union and within the broader context of the Union's emerging Human Rights, Peace and Security Architecture. It will simultaneously assess the viability of this proposal within the backdrop of recent global developments with a view to identifying key legal and policy ramifications. It aims to show that there may be room for the adoption of an empowered African Court as a regional complement to the international criminal justice system.Item Immunity for serving Heads of State for crimes under International Criminal Law: an analysis of the ICC-indictment against Omar Al Bashir(University of the Western Cape, 2011) Adonis, Bongiwe; Werle, Gerhard; NULLThis 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.Item Investigation and prosecution of transnational women trafficking: the case of Ethiopia(University of the Western Cape, 2011) Beyene, Selam Gebretsion; Fernandez, Lovell; NULLHuman trafficking is a widespread and growing crime in the world. Trafficking by its nature involves movement from one place to another and in most cases, it comprises crossing international borders. Although the estimation of victims of trafficking stretches to 2 450 000, the number of prosecutions is less than 5 000. This indicates the challenges faced by many countries in the investigation and prosecution of trafficking cases. Transnational human trafficking is committed in different places, making investigation and prosecution very complex. This paper examines how investigation and prosecution can be carried out when the criminal acts are committed in different countries. It also examines how the issue of jurisdiction is entertained. Furthermore, it addresses who can be termed as “traffickers” in dealing with human trafficking issues. Ethiopia is facing a big problem in fighting human trafficking. Like most countries, the issue of human trafficking is closely related to women. Ethiopia uses the criminal justice system as a tool to eradicate women trafficking. The investigation and prosecution of trafficking cases face many problems which have a direct impact on the country‟s efforts to overcome human trafficking. Thus, this research will contribute significantly by highlighting deficits in the criminal justice system as it deals with the investigation and prosecution of women trafficking issues and by making recommendations with regards to them.Item Obstacles to the Implementation of the Financial Action Task Force’s Recommendations in the Eastern and Southern African Anti-Money Laundering Group (ESAAMLG)(University of the Western Cape, 2011) Phillipo, Jean; Fernandez, L.Money laundering is a global problem that has adverse effects on both the developed and developing countries. If unchecked, it accelerates crime and criminal activities, affects the economy, undermines the integrity of financial markets, undermines the legitimate private sector, causes loss of revenue, poses security threats to privatisation efforts and brings about reputational risks as well as social costs.1 Given the transnational and cross-border nature of money laundering, the fight against it is global. This is why in 1989 the G72 countries decided to set up the FATF3 as a global standard-setting body for Anti-Money Laundering (AML) and combating of terrorist financing (CFT). The FATF has since developed standards for countries across the globe to adopt so as to facilitate this global fight. The standards are in the form of recommendations, and so far there are Forty Recommendations on money laundering (hereafter referred so as the Recommendations), Eight Special Recommendations on CFT, and a Ninth Special Recommendation on cash-couriers. In order to enhance its work and the adoption of its Recommendations, the FATF has also facilitated the establishment of FATF- styled regional bodies (hereinafter referred to as FSRBs) across the world. One such group is ESAAMLG, which was established in 1999. Its mandate is to coordinate and guide its member countries in the implementation of the Recommendations and guidelines. Currently, it has 15 member countries.8 Over the first ten years of its existence, among other things, ESAAMLG has through its members, achieved the following in its mandate: all members except Uganda have enacted AML legislation and some have set up structures that are essential for the implementation of the Recommendations Despite the above-mentioned achievements, the overall implementation of the Recommendations has been generally slow and low. Most of the member countries have not yet enforced their enacted AML legislation as evidenced by low rate of money laundering prosecutions in the region. Some have not yet established financial intelligence Units (FIUs) nor ratified or domesticated important AML related international legal instruments, let alone train personnel adequately. The international instruments comprise the 2000 United Nations Convention against Transnational Organised Crime (Palermo Convention) and the1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention). There are also inordinate delays in the passing of AML legislation as well as the amendment of other domestic legislation, which is necessary in order to harmonise such laws with the AML standards. This gives rise to unevenness, disconnectedness and time variability in the implementation of the Recommendations among the member countries. The main question this paper seeks to answer is this: Are there obstacles to the implementation of the Recommendations in Eastern and Southern Africa?Item The historical path of the crime of aggression and the first ICC review conference(University of the Western Cape., 2011) Muwanguzi, Robert Mugagga; Werle, GerhardObjective 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.