Doctor Legum - LLD

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https://hdl.handle.net/10566/10511

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Browsing by Subject "Admissibility"

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    A critique of the jurisprudence of the African commission regarding evidence in relation to human rights violations: A need for reform?
    (University of the Western Cape, 2018) Nanima, Robert Doya; Mezmur, Benyam
    The success of any human rights system at the domestic, regional or international level requires an adequate development of the normative, institutional and jurisprudential frameworks. With regard to the African Commission, its approach on the normative and jurisprudential framework on evidence obtained through human rights violations is critiqued. The study is guided by three research questions on the African Commission’s normative and jurisprudential framework, and interrogates the need for improvement. While other human rights bodies like the European Court of Human Rights and the Human Rights Committee have developed jurisprudence, their experiences can only be useful to Africa where they are subjected to a framework that speaks to an accused, in Africa in light of his or her peculiar situation. An evaluation of the African Commission’s mode of dealing with evidence obtained through human rights violations, followed by an evaluation of the mode engaged by other human rights bodies offers a platform to selectively, and with necessary adoption recommend a framework that the Africa Commission can use to improve its jurisprudence. In this regard, the study draws on the experiences of other human rights bodies to aid, the development of a framework to improve the jurisprudence of the African Commission. The study situates theoretical underpinnings that inform the decisions of the African Commission, the European Court of Human Rights and the Human Rights Committee. This is followed by an evaluation of the normative and jurisprudential frameworks of the three human rights bodies. The study proposes a framework based on a victim-centred approach to improve the jurisprudence of the African Commission on evidence obtained through human rights violations.
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    Self-referrals to the international criminal court: legal analysis, case studies and critical evaluation
    (University of the Western Cape, 2017) Mukwana, Michael Ddeme; Werle, Gerhard
    The main contributor of situations before the International Criminal Court (hereinafter ICC) has been state parties that have referred situations on their own territory to the ICC through “self-referral”. This study examines the concept of self-referral tracing the history of voluntary deferral by states of their jurisdiction over international crimes up to the enactment of the Rome Statute. The study finds that states were historically reluctant to have international crimes committed on their territory handled by other bodies or states. The self-referrals under the ICC regime are therefore a novelty in international criminal law. The legality of the act of self-referral under the Rome Statute is also examined and it is concluded that self-referrals are provided for within the Statute, although their legality has been questioned. The study establishes that self-referrals have seen unprecedented cooperation by territorial states but have also been selective in nature, targeting only non-state actors (rebel groups) .The study further compares the ICC’s handling of two other situations (Kenya and Darfur) which were triggered by antagonistic proprio motu and UN Security Council referrals respectively. The ultimate collapse of cases arising out of the Kenyan situation plus the suspension of investigations in Darfur due to non-cooperation is significant when compared with the relative successes registered with self-referred situations. The study concludes that whereas self-referrals may involve concessions to the territorial state like non-prosecution of state actors, this is a necessary evil to ensure successful investigations and prosecutions of international crimes. I recommend at the end of the study that in order to shield the office of the ICC Prosecutor from the diplomacy, dirty international politics and compromises at play in securing referrals as well as cooperation during the entire prosecution process, there should be a separate organ of the ICC handling investigations and interactions with states.