Browsing by Author "Kemp, Gerhard"

Now showing 1 - 8 of 8
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    Aggression as "organised hypocricy?" - How the war on terrorism and hybrid threats challenge the Nuremberg legacy
    (University of Windsor, 2012) Kemp, Gerhard; Bachmann, Sascha-Dominik
    Modern threats to international peace and security from so called “Hybrid Threats”, multimodal threats such as cyber war, low intensity asymmetric conflict scenarios, global terrorism etc. which involve a diverse and broad community of affected stakeholders involving both regional and international organisations/structures, also pose further questions for the existing legacy of Nuremberg. The (perhaps unsettling) question arises of whether our present concept of “war and peace”, with its legal pillars of the United Nations Charter’s Articles 2(4), 51, and the notion of the criminality of waging aggressive war based on the “legacy” of Nuremberg has now become outdated to respond to new threats arising in the 21st century. This article also serves to warn that one should not use the definition of aggression, adopted at the ICC Review Conference in Kampala in 2010, to repeat the most fundamental flaw of Nuremberg: ex post facto criminalisation of the (unlawful) use of force. A proper understanding of the “legacy of Nuremberg” and a cautious reading of the text of the ICC definition of aggression provide some markers for purposes of the debate on the impact of new threats to peace and security and the use of force in international law and politics.
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    Alternative measures to reduce trial cases, private autonomy and "public interest" : some observations with specific reference to plea bargaining and economic crimes
    (Juta Law Publishing, 2014-01) Kemp, Gerhard
    This note considers alternative measures to reduce trial cases as a strategy to enhance the effectiveness of the criminal justice system. The emphasis falls on economic crime. It is noted that alternative measures, particularly formal and informal plea bargaining, can be beneficial and are also manifestations of individual autonomy. It is, however, warned that insofar as institutionalised alternative measures become part of a cost-benefit, economic analysis (which seems to be a real risk in the context of economic crime) and insofar as criminal trials for major or complex crimes serve public, didactic roles, alternative measures should not be opted for without careful consideration of the public interest in the broadest sense.
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    Constitutionalization and the International Criminal Court : whither individual criminal liability for aggression
    (Juta Law, 2008-01) Kemp, Gerhard
    The Rome Statute of the International Criminal Court provides for the criminalization of the most serious crimes under international law, including aggression. However, the International Criminal Court can only exercise jurisdiction over aggression after the adoption of a definition and conditions for the exercise of jurisdiction by the Assembly of States Parties to the Rome Statute. The debate about the definition of aggression involves a number of important perspectives. It is submitted that a constitutionalist perspective on these developments might help to put the debate in its proper context, namely an attempt to advance international peace and security through multiple means. The quest to find a suitable definition of aggression for purposes of ICC jurisdiction is more than a legal problem; it is also a political problem. It concerns in essence a debate about the role of international criminal law in the contemporary international system. It is argued that the Rome Statute contains certain constitutionalist traits that can contribute to the further development of international criminal law. A constitutionalist perspective on the criminalization of aggression can contribute to multiple efforts to enhance international peace and security.
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    Individual criminal liability for the international crime of aggression
    (Stellenbosch : University of Stellenbosch, 2008-03) Kemp, Gerhard; Erasmus, M. G.; Van der Merwe, S. E.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
    Aggression is regarded as one of the core crimes under customary international law, but the definition of aggression is still contentious. At present there is no international instrument that provides for effective individual criminal liability for the crime of aggression. The Rome Statute of the International Criminal Court (ICC) provides for the inclusion of the crime of aggression within the court’s jurisdiction, but the Statute needs to be amended to include a definition of aggression and conditions for the exercise of jurisdiction by the ICC. This dissertation seeks to identify the elements of the international crime of aggression, for purposes of individual criminal liability. It is submitted that the creation of the ICC provides the international community with an historic opportunity to establish effective jurisdiction over the crime of aggression.
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    International criminal law
    (Juta, 2018) Kemp, Gerhard
    No abstract available
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    Like dust before the wind, or, the winds of change? The influence of international criminal tribunals on narratives and media frames
    (Oxford University Press, 2019-03-08) Bachmann, Klaus; Kemp, Gerhard; Ristic, Irena; Trbovc, Jovana Mihajlovic; Ljubojevic, Ana; Nedzi-Marek, Aleksandra; Bayisenge, Fortunee; Ahmet, Mohammed Ali Mohammed; Krasniqi, Vjollca
    When created, international criminal tribunals (ICTs) were not only expected to do justice but also to provide stabilization to postconflict regions, contribute to reconciliation and curb the potential denial of atrocities. Based on media content analysis, this article examines whether controversial ICT decisions triggered changes in narratives or frames about the conflicts which formed the background of the respective ICT decisions. There is no evidence for dramatic changes in the preexisting narratives about these conflicts, but we found some cases in which tribunal decisions caused changes in media frames and in elements of such frames, mostly by emphasizing outgroup victimhood and individual responsibility of ingroup perpetrators, as well as triggering effects of collective guilt externalization. Although frame changes were often observed in both democratic and nondemocratic countries, only in democratic countries with pluralist and competitive media systems could they be attributed to tribunal decisions.
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    Mutual legal assistance in criminal matters and the risk of abuse of process: a human rights perspective
    (Juta Law, 2006-01) Kemp, Gerhard
    Mutual legal assistance, as one of the modalities of international co-operation in criminal matters, is generally regarded as primarily a foreign policy matter. In this article it is argued that the mutual legal assistance regime in terms of the International Co-operation in Criminal Matters Act 75 of 1996, and the way in which it is applied in South African law and practice, could lead to abuse of process. Requesting states with bad human rights records and unfair criminal justice systems can use mutual legal assistance provided by South Africa to bolster questionable proceedings in their jurisdictions. While acknowledging the role of the executive in matters of international co-operation (because of the foreign policy dimension), the author contends that the emerging system of international criminal law (of which bilateral forms of co-operation, including mutual legal assistance, form a part) emphasizes not only effective co-operation, but also respect for human rights and fair criminal justice processes. South African jurisprudence (especially in the context of extradition) shows that our courts are sensitive to human rights concerns in matters of international co-operation in criminal matters. Analysing Thatcher v Minister of Justice and Constitutional Development & others 2005 (4) SA 543 (C), this article maintains that our courts should, however, play a more proactive role when mutual legal assistance is requested so as to guard against possible abuse of process.
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    South Africa's (possible) withdrawal from the ICC and the future of the criminalization and prosecution of crimes against humanity, war crimes and genocide under domestic law : a submission informed by historical, normative and policy considerations
    (Washington University School of Law, 2017) Kemp, Gerhard
    The ANC-led Government’s decision in October 2016 to withdraw South Africa from the International Criminal Court (“ICC”) came as a shock to those who regard South Africa as a champion of international criminal justice on the African continent. The decision was vehemently opposed by opposition parties and civil society in South Africa. The high court in Pretoria ultimately annulled South Africa’s notice of withdrawal from the ICC, and the ICC Repeal Bill was also withdrawn from the parliament. This Article argues for South Africa’s continued membership of the ICC. The argument is informed by the history and traditions of the ANC, an internationalist liberation movement-turned-government and one of the early supporters of the ICC. The Article explores the normative roots of the ANC’s commitment to accountability for serious violations of human rights and humanitarian law, not only via the ICC, but also via incorporation of international criminal law in South African domestic criminal law. While the Article does not pretend to know the political fate of the ANC-led Government’s future attitude to the ICC, it is argued that there are solid normative foundations on which the ANC should build to advance the project to end impunity for the worst crimes under international law.