1,721,043 research outputs found
Two controversies in the Lubanga trial judgment of the ICC : the nature of co-perpetration’s common plan and the classification of the armed conflict
No full textThis chapter focuses on two aspects of the International Criminal Court (ICC)’s Lubanga Trial Judgment. First, it investigates the common plan element of (direct) co-perpetration as a mode of liability, particularly the Trial Chamber’s holding that it need not be inherently criminal nor necessarily involve the commission of crimes. It demonstrates that this is inconsistent with other elaborations of the common plan element in prior ICC decisions, jurisprudence that was neither engaged nor addressed. It also questions the reliance by the Trial Chamber on Article 30 of the ICC Statute to arrive at this interpretation and contrasts its approach to that of the ad hoc tribunals in the context of joint criminal enterprise, which similarly contains a common plan element. Second, the chapter addresses the Trial Chamber’s assessment of the classification of the armed conflict, in particular its reliance on Tadić’s test of overall control to determine the existence of an international armed conflict (or not) when non-state armed groups function with the support of states. The author opines that contrary to increasingly popular belief, the fact that the Trial Chamber was classifying the conflict does not in of itself harmonise Tadić with the International Court of Justice’s competing test in Nicaragua of effective control, an ongoing source of debate that was neither flagged nor engaged. The author concludes that rather than letting such conflicting jurisprudence fester in the background unaddressed, it should be confronted, lest they return to unexpected and/or unwelcome results in the future
Farewell 'specific direction' : aiding and abetting war crimes and crimes against humanity in Perišić, Taylor, Šainović et al., and US Alien Tort Statute jurisprudence
No full textIt is not an overstatement to posit that international criminal law (ICL) has never seen anything quite like what has been dubbed the ‘specific direction saga’. The drama began when the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Perišić1 case acquitted the accused of crimes against humanity and war crimes on the basis that the actus reus of aiding and abetting required not only that he substantially contributed to the commission of crimes (by providing practical assistance, encouragement, or moral support), but also, since he was remote from the crimes, that such acts needed to be specifically directed towards the commission of crimes.2 This was the first time that such an element had been applied to this effect in the history of the ICTY and ICL. The rest, as they say, is history, as discussed in detail this chapter
Complementarity and universal jurisdiction : South Africa’s ICC Act and the domestic investigation of extraterritorial international crimes
No full textIn Southern African Litigation Centre and Another v. National Director of Public Prosecution and Others the High Court of South Africa held that South African authorities were legally obliged to investigate allegations of crimes against humanity committed in Zimbabwe by Zimbabweans against their own nationals. This was based on the strength of domestic law, in particular the universal jurisdiction provision of Section 4(3)(c) of the Implementation of the Rome Statute of the International Criminal Court Act (‘ICC Act’), together with South Africa’s international legal obligations as a state party to the International Criminal Court (‘ICC’) and the principle of complementarity. This decision has likely been the catalyst for the opening of other investigations by South African authorities of extraterritorial international crimes allegedly committed in Madagascar and Zimbabwe. This chapter takes a critical approach to the invocation of complementarity in a universal jurisdiction context. It argues that, in cases such as the present, complementarity can only be invoked when a state’s domestic jurisdiction over international crimes matches those of the ICC. That is, when committed by the nationals of an ICC state party or on their territory. To hold otherwise, as the High Court did in the Zimbabwe case (a state which is not a party to the ICC) invites results that completely transforms the traditional understanding of complementarity beyond that intended by its creators. Nevertheless, South Africa may still have an international (or domestic) obligation to investigate international crimes pursuant to its universal jurisdiction, but it cannot be based on the Rome Statute or complementarity
Naval Warfare
No full textThe law of armed conflict generally has become one of the most reviewed and examined areas of public international law over the course of the last three decades. That element of it governing the conduct of hostilities at sea, however, has received relatively little attention. The reason for this is usefully revealed via a brief analysis of the recognised sources of law over that time
The use of force and firearms in the context of assemblies in Kenya : rules and accountability
No full textThesis (LLD (Doctor Legum))--University of Pretoria, 2023.The right of peaceful assembly is guaranteed under the Constitution of Kenya, and in international treaties that Kenya has ratified. However, its actual exercise has been inhibited by restrictive public order laws and permissive rules and regulations governing the use of force and firearms by law enforcement officials. As a result, cases of excessive use of force by the police during assemblies, sometimes leading to loss of lives and serious injuries, have been common. Accountability for such violations, on the other hand, has been rare. This thesis addresses how human rights violations by the police during assemblies in Kenya can be prevented and redressed. In doing so, it interrogates the international legal framework on the right of peaceful assembly and on the use of force and firearms by law enforcement officials, and assesses the compatibility of the domestic laws with international standards. The thesis also analyses the organisational and operational structures of Kenya’s National Police Service (NPS) how they shape interactions between assembly participants and law enforcement officials. In addition, it assesses the existing police oversight and accountability mechanisms at the domestic level in Kenya.
The thesis finds that there are gaps in the Kenyan legal framework on the right of peaceful assembly and on the use of force and firearms by law enforcement officials. It also finds that there are gaps in relation to the organisational and operational structures of the National Police Service, and in the police oversight and accountability mechanisms. It demonstrates how these gaps collectively influence the manner in which law enforcement officials in Kenya police assemblies, and the extent to which they are held accountable for human rights violations committed in the context of assemblies. The thesis then proposes recommendations on legal, administrative and other measures that should be taken to enhance the enjoyment of the right of peaceful assembly, prevent human rights violations by law enforcement officials during assemblies and enhance accountability for violations.Institute for International and Comparative Law in Africa, University of Pretoria.Centre for Human RightsLLD (Doctor Legum)UnrestrictedFaculty of LawsSDG-16:Peace,justice and strong institution
The prohibition of terrorism under international humanitarian law and international criminal law
No full textMini Dissertation (LLM (International Humanitarian Law and Human Rights in Military Operations))--University of Pretoria, 2023.Terrorism is a widely spoken word globally, with not many people understanding its true meaning or its place within international law. The idea of terrorism usually involves suicide bombings, mass shootings and/or murders in everyday life. The realm of terrorism within the context of International Humanitarian Law, that is during armed conflicts, shows a lack of research and action. Despite the lack of a universal definition of terrorism, the existence of this crime is not in dispute. The international legal community have several conventions related to terrorism, which will be discussed in this paper, however, the lack of accountability, investigations and prosecutions for the crimes committed during armed conflicts show a clear lacuna in both International Humanitarian Law and International Criminal Law.
This gap in the law brings doubt about whether civilians truly are protected by International Humanitarian Law and whether International Criminal Law suffices to protect civilians through the criminalisation of terrorism during armed conflicts.
This research paper intends to explore the legal prohibitions and protections provided under International Humanitarian law and International Criminal Law, specifically related to terrorism and acts of terror in the context of armed conflicts. Several treaties and case law examples will be discussed and interpreted in an attempt to determine whether there is indeed a prohibition on terrorism in armed conflicts and what protection is afforded against it for civilians, specifically in detention. And if this is answered in the affirmative, we may be a very small step closer to bringing justice to victims of terrorism.Public LawLLM (International Humanitarian Law and Human Rights in Military Operations)RestrictedFaculty of La
The use of force in counterterrorism policing in Africa under international law
No full textThesis (LLD)--University of Pretoria, 2022.Terrorism is a major threat to peace and security in Africa. In law enforcement responses to terrorism, affected states often employ excessive force. In addition to violating international law and standards, research suggests that excessive force is itself a driver of violence, pushing the victims and their families into the arms of terrorist groups. This potentially perpetuates terrorist violence in a continent vulnerable to violent extremism and to whom terrorism now presents the principal threat to peace and security. This thesis considers what legal, institutional, and policy interventions relevant African regional institutions can make to ensure that the use of force in counterterrorism policing on the continent is brought into line with the international standards. In doing so, it examines and clarifies the regulation of the use of force in counterterrorism policing under international law- highlighting the difference in the law enforcement and the conduct of hostilities rules for the use of force and their scopes of application, and also addressing the issue of the interplay between both sets of rules. In seeking to identify trends in the use of force during counterterrorism operations on the African continent, it uses Egypt, Kenya, and Nigeria as illustrative case studies. In addition, it assesses the legal and policy response of the African regional system to the use of excessive force during counterterrorism policing, focusing principally on the roles of relevant counterterrorism and human rights institutions. The thesis finds that while there have been some positive strides towards greater respect for international norms, the current response by the institutions evidences material gaps and significant inadequacies. The thesis then proposes a two-pronged framework for a comprehensive regional response to the use of excessive force during counterterrorism policing in Africa, based on the clarification of the applicable rules to states; as well as on further roles and actions that regional institutions need urgently to take. Such roles include the design of scenario training programmes for law enforcement (which should be based on the clarified rules), the creation of a dedicated special mechanism for the promotion and protection of human rights while countering terrorism in Africa (in the form of an independent expert), and the establishment of human rights-compliant use of force during counterterrorism policing as an African Union institutional policy.Centre for Human RightsLLDUnrestricte
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International counterterrorism law /
No full textInternational Counterterrorism Law is the first book to consider national terrorism legislation in every one of the 197 States worldwide. It explains how international counterterrorism law has become a distinct branch of international law, and what the different components are in both peacetime and armed conflict. The relevance and contribution of international humanitarian law, international criminal law, national criminal law, and international human rights law are examined in combination with global sectoral terrorism treaties and regional instruments to provide a thorough yet manageable account of the law's application. Real-life examples are used to inform the material, from Ukraine to Syria, to Iran and the unlawful actions of the Global War on Terror, so that the reader can understand how domestic and international terrorism has historically been treated by prosecutors and the courts
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