Masters Degrees (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.
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 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.
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.
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.).
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.

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Browsing Masters Degrees (Public Law) by browse.metadata.advisor "Kemp, Gerhard"

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