Department of Public Law

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The admissibility of a case before the International Criminal Court : an analysis of jurisdiction and complementarity
(Stellenbosch : Stellenbosch University, 2002-03) Denecke, Jan; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The permanent International Criminal Court (ICC) will come into operation after the 60th ratification of the Rome Statute of the International Criminal Court of 1998. The ICC will have jurisdiction over the most serious international crimes, namely war crimes, genocide and crimes against humanity. The focus of this thesis is the difficulties surrounding the admissibility of a case before the ICC. There are basically two legs to this analysis: jurisdiction and complementarity .. Jurisdiction of the ICC is analysed in historical and theoretical context. This comprises an overview of the international tribunals since the First World War, and more specifically their impact on the development of jurisdiction in international criminal law. Secondly, the thesis is examining the jurisdiction of the ICC in terms of the specific provisions of the Rome Statute. This analysis comprises a detailed analysis of all the provisions of the Rome Statute that have an impact on the exercise of the ICC's jurisdiction. The relationship between the ICC and national courts is a difficult relationship based on a compromise at the Rome Conference in 1998. The principle underlying this relationship is known as "complementarity". This : means that the ICC will only exercise its jurisdiction if a national court is "unwilling" or "unable" to exercise its jurisdiction. A detailed analysis of the different provisions of the Rome Statute, as well as some references to other international tribunals, serve to analyse the impact of complementarity on the eventual ambit of the ICC's jurisdiction. In conclusion, some suggestions regarding the admissibility of cases and the difficult relationship between the ICC and national courts are made.
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.
Criminal liability of Internet providers in Germany and other jurisdictions
(Stellenbosch : Stellenbosch University, 2004-12) Funk, Antje Elisabeth Margarete; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: This thesis deals with the criminal liability of Internet providers. The focus is on Germany, but the analysis is put in a wider, comparative context. This is done with reference to South Africa, as well as Europe and the American system. This thesis demonstrates and discusses the existing legal norms to regulate Internet provider liability for illegal content on the Internet and the international efforts to deal with this issue. In the introduction it is shown how the Internet has given rise to a new form of global communication and the accompanying legal problems. This is followed by an examination of the different functions Internet providers have. A survey of some of the important crimes affecting the Internet and also some Internet-specific offences put the more general issue of liability in a more specific context. Traditional and new forms of crimes are discussed. This section is followed by an analysis of Internet provider liability under German criminal law and Germany's Teleservices Act. From an international criminal law perspective some international instruments, like the Cybercrime Convention of the Council of Europe, is discussed. National legislation, especially in the context of the European Union, must always be put in the proper regional and international context. The thesis concludes with some thoughts on alternative, or perhaps complementary, methods to fight illegal and criminal conduct on the Internet. This is done not as a critique of the responses to Internet crime, but rather to strengthen the many hands trying to reduce Internet crime.
A critical assessment of the exercise of universal jurisdiction by South African courts
(Stellenbosch : Stellenbosch University, 2015-03) Burke, Christopher Leslie; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Department of Public Law
ENGLISH ABSTRACT : Universal jurisdiction is a relatively new concept in South Africa and a rather controversial concept in international criminal law. It is often discussed but rarely applied. Universal jurisdiction refers to the power of a State to punish certain crimes irrespective of where they were committed. Such crimes need not be connected to the State in question via the more traditional links of territory, nationality or direct State interest. These crimes are typically the worst crimes in international law such as genocide, war crimes and crimes against humanity. The argument goes that those who commit these types of offences become hostis humani generis, or the enemies of all mankind. Therefore just like the pirate of old any nation that captures them is entitled to exercise its jurisdiction over them, on behalf of all mankind. But at the same time a feature and founding principle of international law is the sovereign equality of States. And under international law criminal jurisdiction is a prerogative of sovereign States. States have territorial jurisdiction over crimes committed within their territory, for having control over a territory is essentially what it means to be sovereign. This means that one nation’s attempt to exercise jurisdiction over persons that also fall under the jurisdiction of another nation could be perceived as the undermining of the second nation’s sovereignty. It is submitted that a proper understanding of universal jurisdiction internationally, and in South Africa, is vital because the Constitutional Court recently ordered South African authorities to investigate torture committed by Zimbabwean officials against Zimbabwean citizens that was allegedly committed in Zimbabwe. In other words the court ordered South African authorities to exercise universal jurisdiction over Zimbabwean officials. This thesis has as goal to critically examine the claims made, and authorities, cited in support of universal jurisdiction, as it is believed that these are usually theoretical and unpractical in nature. It is submitted that balance and a measure of realism is imperative to this debate. Contrary to popular opinion, it is submitted, that the history of international relations has not favored universal jurisdiction and there is no indication that this situation has fundamentally changed or will change in the near future. The thesis continues to examine, after a consideration of the likening of pirates to modern international criminals, the claim that old authorities such as Grotius and De Vattel provide support for universal jurisdiction. An analysis follows of the so-called ‘Lotus principle’, which is said to mean that any State may exercise jurisdiction over serious offences because there is no rule prohibiting it. The trials of German war criminals by the Allies, in the aftermath of WWII, is also said to have evidenced universal jurisdiction and this claim is critically examined. The same applies to the trial of Adolf Eichmann by Israel. The examination of provision for universal jurisdiction in international law continues when the jurisdictional provisions of the Genocide, War Crimes and Torture Conventions are examined and specifically applied to South Africa. The drafting process of these Conventions is carefully studied to understand the intention and circumstances prevalent at the time. In the process specific countries and international case law dealing with these Conventions is also considered. The jurisdictional triggers of the International Criminal Court are surveyed and it is questioned whether it provides for universal jurisdiction and whether it can then be said to support member States in exercising universal jurisdiction on its behalf. The research findings on universal jurisdiction and the ICC are finally applied to South Africa especially with reference to the Constitutional Court decision on the torture committed in Zimbabwe before conclusions are drawn as to what South Africa’s international and domestic duties entail.
A critical comparative analysis of anti-bribery legislation in the BRICS countries
(Stellenbosch : Stellenbosch University, 2016-03) Munnik, Liezl; Kemp, Gerhard; Woods, Gavin; Stellenbosch University. Faculty of Law. Department of Public Law
ENGLISH ABSTRACT : Recent years have proven to be quite progressive in terms of the development of anti-corruption legislation, especially with the promulgation of the United Kingdom Bribery Act, and the increased enforcement of the United States Foreign Corrupt Practices Act by US federal prosecutors. Although the two mentioned Acts have largely overshadowed the anti-corruption developments in the BRICS (Federative Republic of Brazil, Russian Federation, Republic of India, People’s Republic of China and the Republic of South Africa) countries, it to some extent raised the profile and initiated development. The BRICS countries are a grouping of countries understood to be undergoing rapid transformation in their economic environments which often leads to significant corruption problems, hindering the economic growth that would further develop these countries into full force economic super powers. The apparent low impact of the anti-corruption legislation in these countries is concerning despite their commitment and implemented legislative initiatives. This thesis will critically and comparatively evaluate the current legislation relating to anti-bribery in the various jurisdictions of the BRICS countries. The study aims to clarify the extent of the application of the anti-bribery legislation and in doing so develop a greater understanding of the anti-corruption environment of the BRICS countries. It is necessary to first define the concept of BRICS. Thereafter it will be practicable to define the scope of the definition of corruption for purposes of this evaluation and then evaluate the current state of Brazilian, Russian, Indian, Chinese and South African anti-corruption – more specifically bribery – law. Through this study I intend to elucidate and contextualise the many provisions in the BICS legislative environments. The conclusion of this study will allow for parallels to be drawn between the anti-bribery legislation in the various BRICS countries, which will provide an opportunity to assess the effectiveness of the anti-bribery provisions in the various countries.
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.
A critical evaluation of South Africa's enactment of new anti-trafficking legislation in fulfilment of its international obligations to prevent, suppress and combat the trafficking of persons under the Palermo Convention
(Stellenbosch : Stellenbosch University, 2020-04) Pretorius, Nandi; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The United Nations Convention against Transnational Organised Crime (“Palermo Convention”) and the Protocols thereto aim to prevent and combat the international phenomena collectively known as organised crime. Specifically, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children obliges South Africa, as United Nations (“UN”) member that has ratified the Palermo Convention and a number of other international treaties, to promulgate legislation explicitly dealing with the prevention and combating of trafficking in persons. Consequently, the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (“the Trafficking Act”) was promulgated by the national legislature on 29 July 2013 and has come into operation on 9 August 2015. The Trafficking Act creates the statutory crime of trafficking in persons along with different other punishable acts in order to combat trafficking in persons. This definition is compared to that the prescribed conduct which South Africa is internationally obliged to criminalise. Prior to the enactment of the Trafficking Act, South Africa lacked specific legislation criminalising crimes of trafficking in persons. However, South Africa utilised the existing common and statutory law offences, which included certain interim trafficking measures in prosecution of human trafficking. This study compares the South African legal framework, consisting of both the Trafficking Act position and the pre-existing legal resources, with the international obligations in terms of the Convention and Palermo Protocol in order to ascertain whether South Africa meets the three international obligations of, firstly, the criminalisation of certain prescribed conduct, secondly, victim protection and assistance and, thirdly, the prevention and combat of trafficking in persons. This study focuses on analysing the compliance of South Africa’s trafficking definition with the international offence. The mens rea required internationally is discussed and compared to the mens rea required by the Trafficking Act. This study draws the conclusion that although the Trafficking Act definition and further provisions predominantly satisfy the international requirements, certain unacceptable lacunae exist in the law. The failure to waive the requirement of the prohibited means in respect of child trafficking as well as the neglect to effect the provisions in respect of foreign victims of trafficking are material defects that must be addressed. Recommendations to remedy the legislative flaws are consequently made in order to strengthen South Africa’s international compliance.
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.
Double criminality in international extradition law
(Stellenbosch : Stellenbosch University, 2003-12) Blaas, Fey-Constanze; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: The object of the thesis is to examine the content and status of the double criminality principle in international extradition law. The double criminality principle says a fugitive c annat be extradited unless the conduct for which his extradition is sought is criminal in both the requesting state and the requested state. This thesis is based on a study of sources of international law and domestic law and ideas presented in legal literature. The double criminality principle has developed over several centuries and it has been embraced by most states in one form or the other. The principle serves several purposes, of which the most dominant is the notion of state sovereignty. States apply the double criminality principle differently due to its multiple rationale. Legal literature has distinguished two main methods of interpretation, called interpretation in abstracto and in concreto. Whereas the in abstracto method focuses on the theoretical punishability of the conduct, the in concreto method attaches importance to all factual, personal and legal aspects. There are also ways of interpretation that are a combination of these two methods. Most states can be classified into one of the two main groups of interpretation, but in general most states have adopted a specific method of interpretation that is unique to each particular state. There is thus no uniform method of interpretation in international extradition law. This thesis attempts to determine whether the double criminality principle has become a rule of customary international law. Though most instruments on international or domestic extradition law include the double criminality principle, the strong disagreement among legal scholars as to the legal status of the principle leads to the conclusion that the double criminality principle is not a rule of international law today. This thesis contains an examination of whether the principle of double criminality can be classified as an international human rights norm. Though the principle of double criminality has striking similarities with human rights as it partly aims at protecting individuals facing extradition, there are also a number of aspects that distinguish the principle from traditional human rights. This is partly attributable to the fact that international extradition law is not the arena where general international human rights have developed. It is therefore concluded that the double criminality principle does not form part of international human rights law.
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 bargaining in South Africa and Germany
(Stellenbosch : Stellenbosch University, 2013-03) Kerscher, Martin; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: Plea bargaining describes the act of negotiating and concluding agreements in the criminal procedure. Usually the prosecutor and the accused agree that the accused will plead guilty to the charge brought against him in exchange for some concession from the prosecution. The bargain is not limited to the presented subject. Agreements can contain the non-prosecution or reduction of charges, specific terms of punishment, conditions of probation and much more. In many countries the vast majority of criminal cases are disposed by way of bargaining. Plea bargaining breaches with the concept of a conventional trial and consequently clashes with well-known fundamental principles of the criminal procedure. Moreover, bargaining before criminal trials strongly implicates the constitutionally secured rights of the accused as well as of the public interest. Although plea bargaining is broadly criticized for its implications on essential rules and principles, the use of the practice is widespread. There are clear benefits to the participant, such as to avoid a lengthy trial with an uncertain outcome. South Africa, as a legal system with roots in the common law, adopted the procedure in 2001 with the implementation of s 105A into the Criminal Procedure Act. The German legislature in 2009 decided to regulate what until then had been informal practice by inserting several rules into the German criminal procedure, amongst which s 257c contains the main provisions. The implementation of bargains into the German law has produced tensions particularly due to the inquisitorial basis of the criminal procedure that stands in civil law tradition. This thesis evaluates how South African and German provisions on plea bargaining differ, i.e., on which different backgrounds they are based on, how the bargain procedures are construed and to what extent statutory plea bargaining in both legal systems displaces informal traditional agreements. The comparison is enriching under the aspect that both countries implemented the bargain procedure but had to place them on fundamentally different grounds. Having presented the grounds that motivated the research (Chapter I.), the origins of plea bargaining in general as well as the legal development toward the present statutory provisions in both countries are examined (Chapter II.). The bargain procedures are compared in detail (Chapter IV.). A large part focuses on particular problem areas and how both legal systems cope with them (Chapter V.). The result of the research is summarized in a conclusion (Chapter VI.).
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.
State cooperation within the context of the Rome Statute of the International Criminal Court : a critical reflection
(Stellenbosch : Stellenbosch University, 2013-03) Ngari, Allan Rutambo; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: This thesis is a reflection of the provisions of the Rome Statute in relation to the most fundamental condition for the effective functioning of the Court – the cooperation of states. It broadly examines the challenges experienced by the Court with respect to application of Part IX such as whether non-State Parties to the Rome Statute can, notwithstanding their right not to be party, be compelled to cooperate with the Court owing to the customary international law obligation for all States to repress, find and punish persons alleged to have committed the crimes within the jurisdiction of the Court (war crimes, crimes against humanity, and genocide). This is particularly challenging where such persons are nationals of non-States Parties. The various meanings of international cooperation in criminal matters is discussed with reference to and distinguished from the cooperation regime of the International Criminal Tribunals for Rwanda and the former Yugoslavia. For States Parties to the Rome Statute, the thesis evaluates the measure of their inability or unwillingness to genuinely prosecute persons alleged to have committed crimes within the jurisdiction of the Court within the context of the principle of complementarity. It seeks to address, where such inability or unwillingness has been determined by the Court, how effective the cooperation between the States Parties and the Court could best serve the interests of justice. The thesis answers the question on what extent the principle of complementarity influences the cooperation of States with the Court, whether or not these States are party to the Rome Statute. The concept of positive complementarity that establishes a measure of cooperation between the Court and the national criminal jurisdictions is further explored in the context of the Court’s capacity to strengthen local ownership of the enforcement of international criminal justice. A nuanced discussion on the practice of the Court with respect to the right of persons before the Court is developed. The rights of an accused in different phases of Court proceedings and the rights of victims and affected communities of crimes within the Court’s jurisdiction are considered at length and in the light of recently-established principles regulating the Court’s treatment of these individuals. These persons are key interlocutors in the international criminal justice system and have shifted the traditional focus of international law predominantly from states to individuals and bring about a different kind of relationship between States as a collective and their treatment of these individuals arising from obligations to the Rome Statute. Finally the thesis interrogates the enforcement mechanisms under the Rome Statute. Unlike States, the Court does not have an enforcement entity such as a Police Force that would arrest persons accused of committing crimes within its jurisdiction, conduct searches and seizures or compel witnesses to appear before the Court. Yet, the Court must critically assess its practice of enforcing sentences that it imposes on convicted persons and in its contribution to restorative justice, the enforcement of reparations orders in collaboration with other Rome Statute entities such as the Trust Fund for Victims.
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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