Doctoral Degrees (Public Law)

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Crime as punishment: A legal perspective on vigilantism in South Africa
(Stellenbosch University, 2016-12) Nel, Mary; Kemp, Gerhard; Buur, Lars; Stellenbosch University. Faculty of Law. Dept. of Public Law
ENGLISH ABSTRACT : This study aims to remedy a gap in legal literature by addressing the phenomenon of vigilantism from a legal perspective, and seeking to conceptualise and understand the problem. To this end, it first arrives at a working definition of vigilantism for a legal context by critically analysing previous (non-legal) efforts to define vigilantism and identifying and discussing elements of a proposed crime of vigilantism. The focus then shifts to interrogating the relationship between (the erosion of) state legitimacy and vigilante self-help. After demonstrating the usefulness of the concept of legitimacy as an overarching framework for understanding the state-vigilante relationship, three dimensions of legitimacy (legal, normative and demonstrative) are explained and the assumed nexus between (deficient) state legitimacy and vigilantism is clarified. Next, factors precipitating state delegitimation in the criminal justice context are identified so as better to grasp the role of deficient state legitimacy in fostering vigilantism – and concomitantly, how the state might remedy such shortcomings. While it is argued that state delegitimation is by no means the only factor contributing to the emergence and prevalence of vigilantism, a common thread running through many vigilante narratives is that the failure of criminal justice agents to do their job properly opens a law-and-order gap that vigilantes are only too willing to fill with their own brand of “justice”. To appreciate the role played by vigilantes as informal criminal justice “providers”, vigilante counter-legitimation strategies and rituals are then explored. They are compared to those utilised by their formal counterparts, with the aim of better delineating the common ground (or lack thereof) between state-sanctioned criminal justice and vigilantism. Thereafter, various divergent state responses to vigilantism are outlined and critically evaluated, divided into chapters focusing on state relegitimation strategies premised on exclusion (e.g., criminal prosecution) and inclusion (e.g., restorative justice). The emphasis throughout is on how to address vigilantism in such a way as to balance a non-negotiable respect for human rights with the need to respond to pressing community order and security concerns. It is concluded that vigilantes may indeed be willing to abandon violent means of problem-solving sufficiently to legitimate – and work in partnership with – a formal criminal justice system committed to addressing issues of crime and disorder in a community-responsive, inclusive, respectful and restorative manner.
Criminal gang activities: A critical and comparative analysis of the statutory framework under South African criminal law
(Stellenbosch : Stellenbosch University, 2018-12) van der Linde, DC; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: Criminal gang activity presents a substantial threat to the lives of, in particular, the Cape Flats community in the Western Cape. This dissertation investigates the legislative response in holding gang members responsible, namely Chapter 4 the Prevention of Organised Crime Act 121 of 1998 (“POCA”). POCA was promulgated in order to better address a trinity of crimes, namely money laundering, racketeering and criminal gang activity (generically known as “organised crime”). Despite significant strides in combating money laundering and racketeering, the same cannot be said for criminal gang activity. In fact, the incidence of gangrelated crimes has increased since the promulgation of the Act. During the 2017/2018 financial year, for example, more than one in every five murders (21,6%) committed in the Western Cape was gang-related. This dissertation opens by investigating the proliferation of criminal gangs in the Cape Flats communities as well as the need for additional legislation in dealing with gang activity, rather than relying on existing means. The main reason for the promulgation of POCA was said to be the ineffective common law modalities used in dealing with group-based crime, namely the common purpose doctrine (in particular), conspiracy, incitement and public violence. These modalities were therefore scrutinised for two reasons. Firstly: to determine to what extent (and why) the common law inadequately addressed gang activity. Secondly: if the common law is still useful and how it can be developed to more effectively deal with gang activity. A critical and comparative analysis of the threshold requirements (under Chapter 1 of POCA), specific crimes, as well as related sentencing for gang-related activity follows. Foreign and international law relating to organised crime is consulted for interpretive guidance. This analysis must be read together with the analysis of Chapters 1 and 4 of POCA under the Constitution of the Republic of South Africa, 1996. It considers both the fair trial rights of the accused, as well as in terms of the State’s constitutional duty to protect its inhabitants. These analyses cumulatively elucidate the interpretive, substantive, institutional and constitutional issues with Chapters 1 and 4 of POCA. It is ultimately found that Chapter 4 of POCA is both weak and substantially similar to the common law. If we accept the assumption that the common law is ineffective in dealing with gang activity as true, then we must conclude that a statutory manifestation thereof is equally as ineffective. Based on this argument, immediate statutory amendment, supplementation or replacement of both Chapters 1 and 4 of POCA is called for. In this regard, alternative legal mechanisms, as well as foreign and international law is consulted. International law is consulted in particular to address the further punishment of gang leaders which is dealt with inadequately under POCA. This dissertation concludes as well as making substantive suggestions for amendments to the text of POCA as well as a new crime addressing the liability of gang leaders.
A critical consideration of the exclusion of corporate criminal liability for the atrocity crimes under the Rome Statute of the International Criminal Court
(Stellenbosch : Stellenbosch University, 2019-12) Masake, Pilisano Harris; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: From the international criminal law perspective, unlike the national law perspective, the principle of corporate criminal responsibility is not defined neither does the Rome Statute of the International Criminal Court (ICC) of 1998 provide for it. Therefore, currently, the ICC has no jurisdiction over legal persons. It is the argument of this dissertation that legal persons can commit atrocities. The exclusion of corporate criminal responsibility from the jurisdiction of the ICC undermines the preventative measures that are aimed at putting an end to impunity for atrocity crimes under international criminal law. Further that the exclusion of corporate criminal liability has potential to create unnecessary dissonance between the jurisprudence of the ICC and that of domestic courts. The premise for advancing the corporate criminal responsibility, among others, includes: first, that prosecuting and punishing corporations for international crimes (attributing criminal liability to corporations) would enhance the deterrence theory anticipated by the Rome Statute, thereby supplementing the principle of individual criminal responsibility. Second, it is trite law that corporations are at law construed as juristic persons vested with rights and obligations. Therefore, these legal realities, outweighs the corporations’ perceived lack of capacity to commit international crimes. Finally, evidenced by a series of human rights violations by corporations, there is a watertight case to argue that corporations are capable of being more complicit in the commission of core crimes than is currently assumed.
Dialectical tensions in the jurisprudence of the International Criminal Court : fair process, the demands for justice and the expectations of the international community
(Stellenbosch : Stellenbosch University, 2020-03) Van der Burg, Anthea; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The fundamental question, which the notion of fair trial rights imposes is to what extent can a trial be fair to those accused of the most heinous crimes affecting the whole of humanity? In attempting to find an answer, this dissertation explores the general human rights instruments, the Rome Statute and the selected case law at the ICC; including six judgments Lubanga, Katanga, Bemba, Gbagbo, Ble Goude and Ntaganda. The dissertation therefore sought, on the one hand, to assess the extent to which fair trial principles have been applied in case law and secondly, to assess in light of the growing jurisprudence of the ICC, to what extent one can say that fair trial rights are protected at the ICC, given the competing demands of the international community, the victims of the most serious crimes under international law, and the accused. The dissertation is testing a proposition: The International Criminal Court, as a criminal court, should have the realistic but defensible focus of ending impunity via an accused-centred procedural regime that also, but not primarily, gives content and effect to the other competing interests of victim’s rights and the demands of the international community. The dialectical tensions between the rights of the accused, the participation of victims and the interests of the international community are explored through the case law analysis. The Rome Statute as the founding instrument of the ICC projects the ICC (wrongly) as primarily a human rights court with a broad mandate to end impunity and enhance world peace. In reality, the ICC is, of course, a criminal court with one paramount task: to determine, via fair criminal trials, whether accused persons are guilty of crimes within the jurisdiction of the ICC. It is argued that more emphasis or at least a balanced approach should be applied between the interests of victims and those of the accused. In many instances (as illustrated in this dissertation) the court has unfortunately not succeeded in protecting the fair trial rights of the accused nor ensured that there is equality of arms within trial proceedings.
Hostis Humani Generi : towards an effective legal framework to combat maritime piracy : a South African perspective
(Stellenbosch : Stellenbosch University, 2020-03) Simelane, Thobisa; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: In recent history the international community has witnessed the re-emergence of maritime piracy at an alarming rate such that it has featured in the agendas of multilateral institutions and regional bodies as a security matter in need of urgent attention. Piracy is an international crime under customary international law and its status as such has been crystallised in the United Nations Convention on the Law of the Sea (―UNCLOS‖). The definition of piracy under the Convention is criticised for being vague and thus making it impossible to establish with a degree of certainty what the meaning, scope, and content of piracy is. South Africa incorporated the definition of piracy in the Defence Act 42 of 2002, and by doing so also imported the issues that arise in the interpretation and enforcement of the UNCLOS provisions. This dissertation constitutes an analysis of piracy from both legal and security points of view, thus it focuses on piratical activity and the essential elements thereof – and it also looks at the evolution of law and state policy on piracy which eventually led to the adoption of the UNCLOS. Chapter I introduces the topic of piracy as an international crime and it introduces the research question and also give adequate information about the concepts and principles that will inform the schematic theme of the entire research work. This chapter further highlights the importance of the research project, states the objective of the research project and gives an overall course and stages that the dissertation will take. Chapter II focuses on the history of the crime of piracy and how it has evolved from manner of execution to the way in which sovereign states have dealt with the crime historically. The objective of the chapter is to establish a lucid understanding of the historical foundations of piracy, more than that the chapter will discuss concepts such as privateering, letters of marque, piracy on the high seas, and the development of international law to address piracy. Chapter III focuses on the definition of Piracy as provided for by international customary law and codified in the UNCLOS. The primary objective is to determine which internationally proscribed activity falls within the purview of the definition of Piracy, thereby precluding international crimes such as robbery on high seas, maritime terror and so on. This chapter also analysis some of the practical problems in investigating piracy on the high seas and their constitutional implications. Further, there is also an analysis of regional legal and security responses to piracy. Chapter IV constitutes a prognosis on the prosecution of piracy in a South African courts, this is done by analysing the South African approach to international criminal law and justice, recent developments such as the effort to withdraw from the ICC, and the manner in which the courts have interpreted international instruments and legislation providing for international crimes. The analysis is done against the backdrop of the constitutional supremacy in South Africa, and whether the piracy provisions in the Defence Act are aligned with the prevailing South African international criminal law framework Chapter V focuses on developments in regional and international legal and institutional frameworks. The analysis here is largely on the richness of the international criminal law framework and whether it may offer some solutions to the piracy quagmire. Policy from international bodies like the United Nations Security Council and judgments of international tribunals are discussed, particularly how developments at the international level impact on piracy. Chapter VI concludes and makes recommendations for changes from an international and South African perspective. It is argued that the elements of the crime of piracy must not deviate from the essence of the crime the meaning of which is universal. It is further argued that some of the elements in the UNCLOS are outdated and find no relevance to contemporary piracy or modern international criminal law principles, and therefore must be abandoned in favour of a realistic practical elements which address the security threat posed by piracy.
Plea negotiation at the International Criminal Court : opportunities and costs
(Stellenbosch : Stellenbosch University, 2021-03) Oyugi, Phoebe Akinyi; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The International Criminal Court (ICC) faces serious challenges in the delivery of its mandate including legal and procedural challenges, political challenges as well as challenges relating to the victim participation and reparation regime. Therefore, this dissertation examines the question of whether the ICC should implement a plea negotiation policy to mitigate some of the challenges it faces. In order to answer this question, three sub-questions are set out as follows: which of the challenges facing the ICC might be mitigated by the implementation of a plea negotiation policy; whether plea negotiation would fit into the legal and procedural framework of the ICC; and, which lessons might be learned from the practice of plea negotiations in national jurisdictions on one hand, and in the International Criminal Tribunals for the Former Yugoslavia and Rwanda on the other hand. The dissertation concludes that the ICC should implement a policy of plea negotiation because it fits in the ICC’s legal and procedural framework and it can help mitigate some of the legal, procedural and political challenges facing the ICC. Be that as it may, the limitations of the practice of plea negotiation are fully acknowledged. However, it is argued that, these limitations can be mitigated by paying attention to lessons learned from the law, policy and jurisprudence relating to plea negotiations in national jurisdictions and the preceding international criminal tribunals. All in all, the dissertation concludes that plea negotiation could be an important tool to increase the efficiency of trials and increase conviction rates while saving judicial resources at the ICC. Appendix A and B of this dissertation contain texts of proposed provisions on plea negotiation to be included in the Rome Statute of the International Criminal Court and the Rules of Procedure and Evidence, respectively.
The transformative value of international criminal law
(Stellenbosch : Stellenbosch University, 2012-12) Van der Merwe, Hermanus Jacobus; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The existential crisis of the international regime of criminal law is arguably a thing of the past. This is confirmed through a growing body of positive law and the existence of various international criminal courts, notably the permanent International Criminal Court which has been in operation since 2002. Moreover, it is significant that international criminal law (“ICL”) is developing towards increased domestic enforcement, in particular as a result of the complementarity regime envisioned by the Rome Statute of the International Criminal Court. States have generally been receptive and cooperative towards international criminal norms as well as the structures of international criminal justice. As a result international criminal laws are increasingly being transformed into national law and enforced by states on the domestic level. Chapter 2 provides an overview of the abovementioned developments, the characteristics of ICL and certain key concepts. In lieu of the upward trajectory of ICL’s development, the thesis aims to determine whether ICL exerts an influence which holds ‘transformative value’. Chapter 3 unpacks this concept by delineating the different meanings afforded to transformation and identifying the reticent characteristics of transformative change, especially the underlying importance of values during processes of transformation. Transformative value is conceptualised broadly as the product and potential of the type of change that holds some utility for the civitas maxima (or the community of mankind). In Part II, ICL’s transformative value is investigated from a historical and global perspective with emphasis on the purposes, values and politics of international criminal justice. Chapter 4 focuses on the Nuremberg IMT and the trial of Adolf Eichmann. It is submitted that these trials produced a paradigm shift that represents the transformative foundation of modern ICL. Chapter 5 investigates the purposes and aspirations of modern ICL with reference to its underlying assumptions as well as its objectives, the latter which may be found in positive law and the jurisprudence of international criminal courts. The research suggests that ICL is disposed towards objectives which are unique in comparison to those of domestic criminal law. While it cannot be denied that punishment under ICL is predominantly a backward-looking exercise in the tradition of domestic criminal law retributivism, ICL is somewhat removed from this paradigm due to its purpose- and value-driven nature. ICL is also expressive, normative and forward-looking in various respects. Individual criminal liability is however not universally accepted as an appropriate response to collective violence. This is partly a result of ICL’s endemic political dependency. Chapter 6 addresses the impact of politics on ICL’s transformative value. ICL is closely associated with liberal-legalist ideals which essentially promote the interests of individuals. Although it constitutes an important element of ICL’s transformative value, this political influence exposes ICL to criticism and may exert a disruptive influence on its transformative mandate. In this latter respect it is noted that ICL remains somewhat controversial and subject to the general limitations of the decentralised and state-dominated international legal system. In Part III, ICL’s transformative value is investigated using South Africa as a case study, with particular reference to its transitional- and post-transitional periods. Chapter 7 provides a domestic perspective of ICL’s transformative value by investigating the interactions of ICL and the South African legal system, particularly the value of the transformation of ICL into national law. In this regard the impact of Constitutional provisions and national legislation pertaining to ICL are considered, as well as a number of cases related to matters of international criminal justice. It is argued that international criminal norms may promote human values over state authority and political interests in the domestic context. Domestic courts may serve as ‘engine rooms’ for transformative change through more effective enforcement of those international criminal norms that have been ‘transformed’ into national law through implementation legislation. The permeation of international criminal norms into the domestic sphere represents a foray of universal values into an area traditionally dominated by sovereign might and holds potential for promoting the interests of individuals as well as for the institutionalisation of human rights. Yet, as illustrated by the current rift between the ICC and the African Union, international and regional political affiliations may influence the ability of a state to meet its obligations towards international criminal justice. In Part IV (Chapter 8), it is submitted that ICL is historically and ontologically aimed at change that is both backward-looking (repressive) and forward-looking (normative) as well as beneficial in a communitarian sense. ICL’s transformative value derives from the value-and purpose-driven nature of international criminal norms, the political nature of international criminal justice and also from the interaction between international law and domestic legal systems. ICL may be viewed as an authoritative expression of the norms and values of the international community. As such, ICL and its institutions may be viewed not only as a means of punishing the perpetrators of international crime, but also as part of the spearhead towards a desired alternative to the historical and present reality characterised by injustices which have gone unabated under the system of traditional Westphalian sovereignty. As egregious forms of the aforementioned injustices, macro criminality and impunity undermine the protection of internationally recognised individual rights. ICL seeks to remedy this through impacting on those individuals that have not yet acceded to the emergent universal consciousness of the majority in the international community. It is further argued that ICL’s transformative impact is not confined to the “hard” impact of the application of substantive ICL in international and domestic courts. The international criminal justice system as a whole also produces a normative impact through a purpose-driven association with international values and certain political preferences. This thesis offers a new way of thinking about the value, potential and limitations of the ICL regime, as well as the role of politics in international criminal justice.

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