Browsing by Author "Woolaver, Hannah"

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    Analysis of legal issues arising from the principle of concurrent domestic and international jurisdiction : application to the Rwandan context
    (2014) Theophile, Sugira; Woolaver, Hannah
    In international criminal law, the application of the principle of concurrent jurisdiction necessitates the existence of two types of Courts: a national court and an international one. As a result of the uniqueness of the Rwandan context, there were more courts hearing matters that arose from the genocide.6 In Rwanda, such cases are tried by ‘conventional courts’ and the ‘Gacaca’ courts. Gacaca is defined as a system of transitional participative community justice, whereby the population is given the chance to speak about the committed atrocities, to prosecute, defend, judge and punish the criminals. The conventional courts are divided into ordinary courts and military courts. All these courts have the jurisdiction to prosecute genocide cases. Genocide cases were therefore heard in three different courts domestically but in concurrence with International Criminal Tribunal for Rwanda (ICTR). As a result of the particular context of the Rwandan Genocide of 1994, particular issues arise and will be explored in this study.
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    Balancing state sovereignty and the protection of human rights: a case study on the impact of the requirements of state consent and the exercise of political will on the functioning of the human rights systems of the African Union and the Southern African Development Community
    (2021) Kunaka, Sheryl; Woolaver, Hannah
    In recent decades, achieving the goal of the global protection of human rights has been approached most commonly through multilateralism. States have since abandoned notions of self-reliance in favour of interdependency and collaboration, leading to a proliferation of international, regional, and sub-regional multilateral organizations. However, the definition of ‘multilateralism' restricts the application of the legal frameworks of these organizations to sovereign states that have voluntarily consented to be bound by the obligations contained therein. State consent and political will drive multilateralism, and the requirement of voluntariness in these forms has been utilised as a means of respecting the internationally recognized legal principle of state sovereignty. Consequently, voluntariness has impacted the effective functioning of organizations such as the African Union (‘AU') and the Southern African Development Community (‘SADC'). This thesis proposes that the less significant the impact of voluntariness is on a regional or sub-regional human rights system, the more effective it will be in its role of protecting human rights. This thesis provides practical ways of lessening the impact of voluntariness, in order to strengthen the human rights legal frameworks of the AU and the SADC; and to improve the functioning of their respective compliance mechanisms. This thesis achieves the aforementioned by drawing from the systems' European and African regional and sub-regional counterparts.
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    A critical examination of the relationship between the International Criminal Court and the United Nations Security Council, in the light of referrals and deferrals
    (2014) Lugulu, Jullie Ingrid; Woolaver, Hannah
    The Rome Statute of the International Criminal Court (Rome Statute) provides for a close relationship between the International Criminal Court (Court) and the United Nations Security Council (Security Council). This relationship is demonstrated through Security Council exercise of referrals and deferrals. This dissertation discusses first, the Security Council referrals of the situations in Darfur, Sudan and Libya. Second, the Security Council passing of resolutions 1422(2002) and 1487(2003), which deferred the Court from commencing any investigations or prosecuting of any crimes that could have arisen as a result of the United Nations peacekeeping operations. This dissertation argues that the Security Council has exercised referrals and deferrals contrary to the Rome Statute, the Charter of the United Nations (the Charter), and the Negotiated Relationship Agreement between the Court and the Security Council (Relationship Agreement) as envisaged by the drafters of the Rome Statute. It concludes by stating that, the relationship between the Court and the Security Council is at a crossroad because the latter has failed to exercise referrals and deferrals in the manner provided for in the Rome Statute and as envisioned during the drafting of the Rome Statute, thereby equating the Court to the proverbial bark of a toothless dog.
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    Developing a legal and institutional framework for witness protection in Nigeria: reflections from international perspectives
    (2020) Oyakhire, Suzzie Onyeka; Van, Der Spuy Elrena; Woolaver, Hannah
    'Witness protection' has been introduced in the criminal justice systems of several states worldwide as a recognised tool for facilitating the cooperation of witnesses and ensuring that concerns about their safety are not ignored. Although not a new phenomenon, witness protection praxis continues to evolve and remains largely undeveloped in many states. In Nigeria, the relevance of witness protection as a critical aspect of criminal justice administration is increasingly becoming evident. As an area of enquiry, scholarly literature on witness protection is descriptive, locally focused, and lacking in conceptual clarification. Recent developments in Nigeria highlight the need for the clarification of legal and conceptual issues within the existing legal framework for protecting witnesses. Using the Nigerian case study, this thesis illustrates the obscurities inherent in the concept of witness protection. These are highlighted around five critical areas: the definition of witness protection; the scope of beneficiaries requiring protection; the nature of crimes necessitating protection; the nature of protective measures; and the administrative control of witness protection. The thesis explores the concept of witness protection, which is still at an early developmental stage in Nigeria. In the absence of a clear legal jurisprudence, the thesis pieces together the practice of witness protection in Nigeria and embarks on a conceptual and legal clarification of issues important to developing a witness protection framework. To achieve this, the thesis draws from international debates, legal developments and institutional practices from other jurisdictions as a basis for improving Nigerian efforts in witness protection and for making normative proposals to that effect. The thesis utilises two distinct perspectives: the criminal justice and the human rights perspectives as heuristic tools for analysing the concept of witness protection and to separate the disparate influences that shape how it is construed. A combination of desktop research by way of doctrinal research and empirical research was adopted. In pursuit of a more detailed understanding of contemporary developments relating to witness protection in Nigeria, field research was undertaken. This comprised qualitative research using semi-structured interviews of a specifically selected sample of criminal justice experts and practitioners with knowledge about witness protection in Nigeria. The semi-structured interviews justify the assumptions that there is a need to examine and clarify the scope of witness protection and what it depicts. The thesis finds that the concept and practice of witness protection evolved within specific parameters and its definitions are determined within these limits. It advances the existing witness protection conversations by offering an analytical basis for discussing witness protection and proposes organising principles for delineating the scope of witness protection. The clarifications made in the analysis within this thesis are utilised in making normative proposals and policy recommendations for developing a legal framework for witness protection in Nigeria. The thesis recommends a formal witness protection framework, through the enactment of comprehensive witness protection legislation that clearly defines the objectives of witness protection, the scope of beneficiaries, the scope of crimes necessitating protection, the type of protective measures and guidelines for assigning these measures, clear eligibility criteria and which establishes an independent witness protection agency to administer witness protection in Nigeria.
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    The exercise of prosecutorial discretion during preliminary examinations at the International Criminal Court
    (2016) Olugbuo, Benson Chinedu; Chirwa, Danwood Mzikenge; Woolaver, Hannah
    This study explores the exercise of prosecutorial discretion during preliminary examinations at the International Criminal Court. The key questions it investigates are whether there is a secure legal and theoretical basis upon which such discretion can and should be exercised and whether the Prosecutor of the International Criminal Court understands, develops and applies appropriate rules governing such discretion consistently. The study involves the analysis of various primary and secondary sources of law regulating the exercise of prosecutorial discretion. It begins by looking at the exercise of discretion at the national and international judicial systems to understand how their practices have informed and influenced the International Criminal Court Prosecutor, and then examines the provisions of the Rome Statute and its rules of evidence and procedure to determine the scope of the exercise of prosecutorial discretion. It also critically reviews the policy paper on preliminary examination adopted by the International Criminal Court Prosecutor. The study argues that, although the International Criminal Court Statute does not provide clear guidance on the exercise of prosecutorial discretion during preliminary examinations, there is a sufficient legal and theoretical basis upon which to exercise this discretion during preliminary examinations at the International Criminal Court. Article 42 of the Statute of the International Criminal Court, which provides for the independence of the Office of the Prosecutor is one such legal and theoretical basis. Thus, the Rome Statute clearly endorses the theory of prosecutorial neutrality. After expounding such a legal and theoretical basis, the thesis examines six case studies which represent six preliminary examinations conducted by the International Criminal Court Prosecutor in the conflicts in Uganda, Sudan, Côte d'Ivoire, Central African Republic, Kenya and Libya. The examination will answer the question whether the Prosecutor has exercised discretion in accordance with the spirit of the International Criminal Court Statute, and in a manner that would assuage claims that the Court is not neutral, especially in its dealing with African states. The analysis of these case studies shows that the Prosecutor has not exercised its discretion consistently and in a manner that can inspire public confidence in the administration of international criminal justice. To remedy this situation, the study recommends, among other things, the need for clarity on the exact roles of the Prosecutor and Pre-Trial Chambers during preliminary examinations, beyond the current practice where the Pre-Trial Chamber can only authorise the opening of proprio motu investigations. Second, the study recommends the review of the policy on the gravity of crimes. Although the policy paper on preliminary examination has clarified the fact that gravity involves both quantitative and qualitative analysis of victims of international crimes, it is not yet clear how to carry out gravity analysis. Third, the study proposes enhancing positive complementarity during preliminary examinations in order to encourage national efforts in the investigation and prosecution of international crimes. Finally, the study recommends that the decision to suspend or defer investigations or prosecutions in the 'interests of justice' under article 53 of the Rome Statute should be a shared responsibility between the Court and the United Nations Security Council.
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    The importance of reparations for victims of conflict-related sexual violence : challenges facing the International Criminal Court
    (2016) Wasserman, Zia; Woolaver, Hannah
    Sexual violence perpetrated during armed conflict is a notoriously prolific, yet oft neglected phenomenon. It used to merely be considered an inevitable by-product of war, yet recently sexual violence has come to be described as a 'weapon of war'. This refers to the deliberate and tactical intentions of the perpetrators, and alludes to the fact that sexual violence has been and continues to be an inherent aspect of conflicts. Fortunately, with increased global attention on this issue, there have been numerous developments in international humanitarian law as well as the field of criminal justice, which serve to recognise and condemn the prevalence of wartime sexual violence. That is, rape and other forms of sexual violence have been categorised as international crimes falling within the jurisdiction of international criminal tribunals and courts dealing with conflict situations. Furthermore, there have been several convictions of persons indicted for such crimes. These advances must be applauded, yet there remains a troubling omission: the provision of reparations to the victims of wartime sexual violence. Though the international tribunals and courts are statutorily empowered to award such reparations, there seems to be lapse in this regard. This is critically problematic considering the many harmful consequences of conflict-related sexual violence, namely: physical and medical issues, emotional and psychological issues, social exclusion and stigmatisation, as well as resultant monetary issues. Without a concomitant award of reparations attached to the conviction of a perpetrator of wartime sexual violence, victims are not able to experience true justice. The focus of this paper therefore rests on the challenges of the official court system - specifically that of the ICC - in providing reparations to victims of conflict-related sexual violence. With these in mind, it is recommended that a separate forum be created to deal exclusively with the provision of reparations.
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    Legal regulation of cyber warfare: reviewing the contribution of the Tallinn manual to the advancement of international law
    (2015) Sang, Michael; Powell, Cathleen; Woolaver, Hannah
    The development of modern technology is inevitably bound to change the conduct of warfare. It is also self-evident that the mode, typology and participants in current armed conflicts do not fit within the structures of traditional international law on the use of armed force. Indeed, in some cases the new conflicts pose intractable challenges to the existing law. This is particularly true with regard to the military use of cyber operations either in the context of armed self-defence or in the conduct of hostilities in time of armed conflict. The establishment of the worldwide computer network and the increasing reliance on digital services has brought about a new type of clear and present danger: the threat of cyber attack. The fact that cyber operations are a relatively novel phenomenon in the history of international law automatically raises some important questions regarding whether the existing rules of international law apply to them.6 Consider the evidence indicating that there have been Chinese government-backed cyber operations, including espionage, targeting State and corporate computer networks in the United States. The question that arises in regard to cyber incidents, like the one illustrated above, is whether international law governs them, and if so which specific rules apply, and the circumstances in which they apply. With the aim of clarifying the uncertainty as to the specific rules pertinent to cyber warfare, the Tallinn Manual on the International Law Applicable to Cyber Warfare was developed by a group of twenty renowned international law scholars and practitioners. It provides a useful basis on which to identify how and evaluate the extent to which international law applies to cyber operations. This research seeks to critically appraise both the current and prospective contribution of the Tallinn Manual to the advancement of international law. In particular, it focuses on how international law as enunciated in the Tallinn Manual governs cyber operations in general and how it applies to cyber-unique aspects of this form of warfare. The research then reviews the achievements of the Tallinn Manual as well as its shortfalls in relation to the development of a coherent framework of international law that can be used to govern cyber operations. After this, the research turns to the increasing role of non-binding instruments of international law in the process of international law-making. The case is then made for the possibility of the Tallinn Manual being the basis on which future binding norms may be crafted to provide specific legal regulation for cyber operations.
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    The legality of the use of force against terrorists: an examination of the United air strikes against the Islamic State in Syria
    (2017) Stark, Catherine; Woolaver, Hannah
    The traditional substantive framework of the use of force in international law has been challenged by recent developments involving non-state actors. This dissertation considers the legality of the use of force against non-state actors, specifically terrorists, where the terrorist acts are not attributable to the territorial state. The United States' air campaign against the Islamic State in Syria is examined to determine whether the United States' conduct constitutes a lawful exercise of the use of force in international law. The substantive framework of the use of force in international law is first analysed, which includes an explanation of the scope of the prohibition of the use of force in international law and the various exceptions to this prohibition. This is followed by a description of the focus of this paper, terrorism and counterterrorism, and of the development of the use of force against terrorists in international law. The current status of the use of force against terrorists in international law is elucidated. The United States' use of force against the Islamic State in Syria is contextualised through the provision of a brief history of the conflict in Syria and the emergence of the Islamic State as a terrorist threat. Possible legal justifications regarding United States' use of force in Syria are examined to conclude whether the air strikes are lawful in terms of international law on the use of force. It is hoped that this paper will contribute to the growing debate about the legality of the use of force against terrorists and eventually, to a clearer framework on the use of force in international law.
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    Media and Armed Conflict: Protection of Journalists and Media Facilities under Human Rights Law and International Humanitarian Law
    (2019) Seppelt, Rosalie; Woolaver, Hannah
    This master thesis gives a comprehensive overview of the protection of journalists and media facilities in times of armed conflict. First, the thesis analyses, which legal regimes are applicable: international humanitarian or human rights law. In conclusion, it suggests a parallel application of both regimes while international humanitarian law is to be regarded as lex specialis in the event of an armed conflict. In the case of a discrepancy between norms of the two regulatory complexes, the lex specialis maxim solves the inconsistency as an interpretation rule. Thus, the human rights provision is interpreted in the light of the more specific humanitarian law provision. Secondly, the thesis examines the concrete norms under both legal regimes that protect journalists and media facilities. It finds that only human rights norms protect the work of journalists while international humanitarian law protects journalists as civilians and media facilities as civilian objects. In the event, that a (fatal) military attack on journalists or media facilities is justifiable under international humanitarian law, there exists a controversy with the right to life guaranteed in human rights law which is solved by means of the lex specialis principle. Finally, the extent of the de facto protection of journalists and media facilities in comparison to the assured de jure protection is tested. For this purpose, the effective protection of journalists and media facilities in general during the current South Sudan crisis is analysed as well as the protection of female journalists against gender-based rights violations in times of armed conflict. A huge discrepancy between the de jure granted protection and the actual protection is found in both cases. Therefore, this thesis stresses the need to adopt new binding international regulations specifically tailored to afford all journalists and media facilities the highest protection possible – especially in times of conflict.
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    Monitoring the unknown : improving adherence to the principle of non-refoulement through a 'monitoring network'.
    (2013) Manicom, Charlotte Joan Ogilvie; Woolaver, Hannah
    Includes bibliographical references.
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    Reflections on the evolving jurisprudence concerning the presence of the accused : focusing on National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another
    (2015) Timoney, Caroline; Woolaver, Hannah
    On 30 October 2014 South Africa's Constitutional Court unanimously stated that the South African Police Service was obligated to investigate allegations of torture in Zimbabwe. This landmark decision, based on South Africa's international obligations and domestic legislation, is rooted in the Court's interpretation of universal jurisdiction and in particular its application of the presumption of the "anticipated presence" of the accused. The case, first heard in the North Gauteng High Court in 2012 before being taken on appeal to the Supreme Court of Appeal and Constitutional Court, concerned allegations of torture against ZANU-PF officials and Zimbabwean police during the run-up to elections in 2007. This final judgment imposes a binding obligation on the South African Police Service to investigate the allegations, prior to any decision on further prosecution. This dissertation begins by providing a background to South Africa's implementation of the Rome Statute domestically before focusing on the theoretical framework of universal jurisdiction. This is followed by an examination of the South African jurisprudence, in particular the judgment of the Constitutional Court in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another. The Constitutional Court's decision to allow for the exercise of universal jurisdiction in absentia (otherwise known as "anticipated presence") must be located within the broader concept of jurisdiction. Anticipated presence is a controversial issue and this paper will explain both the Court's reasoning as well as possible implications of this judgment. The fight against impunity for perpetrators of international crimes, emphasised by both the Rome Statute and South Africa's own legislation, has been strengthened by this judgment. This paper will also examine the remaining areas of concern which were not addressed by the Constitutional Court. This Constitutional Court judgment will define the approach of South African courts in forthcoming cases concerning the application of the Rome Statute. Despite the Constitutional Court's failure to take all factors into account in its judgment, this landmark decision has changed the legal landscape considerably and will be a powerful tool to counter the culture of impunity.
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    Reparations and child soldiers in Africa: the legal regime of reparations for former child soldiers under the Rome Statute of the International Criminal Court
    (2015) Mudimu, Godknows; Woolaver, Hannah
    The involvement of children to fight in armed conflicts remains one of the main challenges towards the full realization of children's rights on the African continent. Despite a substantive legal framework affording protection and prohibiting the enlisting and recruitment of child soldiers, this practice remains prevalent in many parts of Africa particularly in the Great Lakes Region. As a result of their childhood and the traumatic events they are exposed to during armed conflicts, children inexorably suffer from many forms of harm including physical, mental and psychological harm. Addressing this harm as a matter of urgency is crucial for the proper and effective reintegration of these children into society. The Rome Statute departs from the silence of many international criminal law instruments which focus exclusively on the prosecution and sentencing of criminals overlooking the needs of the victims of international crimes by offering redress. It introduces a new and unique reparative system that aims at providing redress to the victims of international crimes within the courts' jurisdiction. This reparative regime which is still in its early life stages faces many challenges and uncertainties. In its first case dealing with principles relating to reparations, the International Criminal Court (ICC) showed these challenges and the difficulty of establishing permanent guidelines on future reparations to former child soldiers who are victims of the international crime(s) of the enlisting and recruitment to fight as combatants. Clear principles can help current and future victims by having an insightful and realistic expectation of the modalities and the scope of the reparation award they can get from the ICC.
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    State creation: the legitimacy of unilateral secession and recognition in international law
    (2017) Mwaihomba, Agnes; Woolaver, Hannah
    Since the twentieth century, the proliferation of new States has not declined in the twenty first century. Several small territories have declared themselves as sovereign States by claiming statehood in international law. These developments have a significant measure in many respects of international law notions of self-determination, secession, recognition and de-colonisation. A State remains a primary subject of international law. Despite the fundamental legal framework on the creation of States enshrined in the Montevideo Convention on the Rights and Duties of States 1933 (Montevideo Convention), the creation of States and unilateral secession remain part of the controversial and unsettled issues of international law. This is because of the legal and factual situation that evolves around the concept of State creation and unilateral secession. While the legal framework on State creation is in place, other new criteria continue to develop, alongside are the concepts of unilateral secession and self-determination. It therefore follows that in any given situation of contemporary international law, the concepts of State creation, secession and self-determination cannot be discussed in isolation. In this thesis, I will analyse the notions of statehood, secession and recognition. I will argue that in contemporary international law or post-colonial era, unilateral secession and satisfying the traditional criteria of statehood does not qualify the clamant entity to become a new State. Secondly, I will argue that although recognition is not a rule of customary international law, State practice on recognition and other suggested criteria play a significant role with regards to creation of States in international law. Thirdly, the Republic of Somaliland as a case study will be analysed against the criteria of statehood and the application thereof. The study will also provide a general analysis of a few specific cases of successful and unsuccessful attempts at secession.
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    The effects of the processes of domesticating and applying international law in Malawi
    (2021) Kondowe, Alexander Justice; Woolaver, Hannah
    International law enjoys a considerable space in Malawi's domestic law as evidenced in several constitutional provisions that allow the application of international law in Malawi. While several constitutional provisions allow the application of international law in domestic law, the process of how international law forms part of the domestic law is provided under section 211 of the constitution of Malawi where it provides for instances of the direct and indirect application of treaties and CIL in Malawi's domestic law. This dissertation discusses the relationship between international law and domestic law in Malawi by analysing how the process of domesticating and applying international law in Malawi affects the development or growth of domestic law. Therefore, this dissertation answers the question of; to what extent is the process of domesticating and applying international law in Malawi affects the development of domestic law. To fully grasp the effects of domesticating and applying international law in Malawi, this dissertation will discuss the role and application of treaties and CIL in domestic law. It will be discussed that while some monist elements can be seen in the constitution, but the constitutional order and the courts agree that Malawi is predominantly a dualist state. The presence of the monist and dualist elements is an indication that changes in international law are likely to affect changes in domestic law through either the process of legislation by parliament interpretation of the law by courts. As a dualist state, the general position is that whenever a conflict arises between international law and domestic law, domestic law prevails. However, the courts as interpreters of the law in Malawi have taken a different approach of applying international law to the extent that they have consistently interpreted the law in a manner that avoids a conflict between international law and domestic law. It will be argued that the reason why the courts have developed a principle of avoiding a conflict between international law and domestic law is that the court as an arm of government is part of the government's efforts to fulfill its international obligations. Therefore, any attempt to invalidate such obligations in domestic law would be viewed that the government of Malawi is fighting itself. Therefore, whether the processes of transforming or incorporating international law into Malawi's domestic law is done through legislation or interpretation of the law by courts, it equally affects or influences changes or development of the domestic law in Malawi because whether it is legislation or courts decision, they are all binding law domestically.
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    The Legality of the USA s Use of Force to Counter Terrorism
    (2024) Maher, Kiera; Woolaver, Hannah
    The United States of America (“USA”) has often resorted to the use of force as a means to counter terrorism citing the right to use force in self-defence as the justification for it. A history of the USA's use of force against other states in the name of countering terrorism portrays that the country has often gone too far opening up the narrow exceptions to the prohibition on the use of force in the United Nations Charter and disregarding the fundamental requirements that must be met before using force in international law. This is evinced in the actions of the USA after the 9/11 attacks. After the events of 9/11, Bush declared that the USA was at war and then enacted drastic state responses to counter terrorism, including the use of military force. The legality of this has been challenged. This dissertation will assess the lawfulness of the USA's use of force against states to combat terrorism. It is hoped that this paper will contribute towards a clearer framework on the use of force in international law, specifically in the context of countering terrorism.
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    The principle of complimentarity through the Roma Satute: a critical analysis of its content, implementation and application. Case study of the DRC
    (2021) Kahimba, Kambale Dérick; Woolaver, Hannah
    The analysis of the principle of the complementarity formula set out in the Rome Statute is at the heart of this dissertation. The research aims to critically reflect on the complementarity regime under the Rome Statute in relation to international crimes committed in the DRC since the incorporation of the Rome Statute into the Congolese legal system. This research argues that the implementation of the principle of complementarity poses difficulties of application, implementation, and interpretation and thus remains a less effective means of putting an end to international crimes. The findings of this research indicate an urgent need for the principle of complementarity being rethought by clarifying its content and scope. Victims of international crimes cannot to date rely on its implementation to obtain justice. This research adopts an essentially conceptual approach; moreover, the methodological approach adopted is that of qualitative research. This research calls for the principle of complementarity being rethought by clarifying its content and scope.
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    The soldier's dilemma: A look at the development and scope of the superior orders defense and its potential to resolve the dilemma
    (2023) Corbishley, Claire; Woolaver, Hannah
    For centuries soldiers have been faced with a dilemma. They are trained and obliged to obey the orders of their superior officers, and face being court-martialed for disobedience, on the one hand. On the other hand, if soldiers obey their orders and ultimately commit an international crime, they face prosecution at an international level. This is referred to as the soldier's dilemma. The defence of superior orders is one soldiers are permitted to raise in order to mitigate liability, to some degree, when being prosecuted. The defence of superior orders has been raised throughout history, with varying outcomes. There has been a considerable amount of research done on the defence, with polarised opinions on the legitimacy of the defence. The purpose of this paper is to determine whether the defence of superior orders has the potential to resolve, in whole or in part, the soldier's dilemma. In answering this question this paper will look at the history of the application of the defence, and how it has been developed over time. It will then look at the different approaches that have been developed and made use of in the prosecution of soldiers accused of committing international crimes. These approaches are the doctrine of respondeat superior, absolute liability and conditional liability. In looking at these different approaches this paper will consider whether any of the approaches have the ability to resolve the soldier's dilemma. This paper will show that there is considerable support and reason for the proposition that the conditional liability approach, constituting a middle ground between the polarised respondeat superior and absolute liability approaches, is best placed to resolve the soldier's dilemma.
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    Victim participation in practice at the International Criminal Court: Kenya 2 case study
    (2015) Dodgson, Kate; Van der Spuy, Elrena; Woolaver, Hannah
    This minor dissertation examines victim participation at the International Criminal Court in practice, focusing on the Kenya 2 proceedings. Victim participation has always been a significant part of the mandate of the International Criminal Court, however, the actual practice of victim participation is not well expounded upon in the Rome Statute or through the legal texts of the Court. It has largely been left up to individual chambers to determine and design what modality of victim participation is suitable for the circumstances of the case before it. The Kenya situation presented a number of novel circumstances that required the Court and Counsel to implement new and innovative victim participation practices. The failures and successes of the Kenya victim participation methods deserve to be documented so that lessons can be learnt for current and future victim participation practices.