Law of Procedure and Law of Evidence

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    The emergence of a modern international criminal justice order
    (University of the Free State, 2006-05) Swanepoel, Cornelis Francois; Fick, C. P. Van der Merwe
    English: This study has investigated the emergence of an international criminal justice order from its inception to its current status. It has investigated the emergence of an international criminal justice order by referring to: (1) the early attempts by nations to control the waging of war; (2) the influence and impact of the Nuremberg and Tokyo International Criminal Tribunals; (3) the emergence and rooting of international human rights and humanitarian law in coexistence with international criminal law, particularly since the adoption of the 1949 Geneva Conventions; (4) the influence and impact of the international criminal ad hoc tribunals for the former Yugoslavia and Rwanda; (5) recent attempts by states to exercise universal jurisdiction such as in the Pinochet and Congo cases; (6) the establishment of the International Criminal Court and numerous aspects of international criminal law that have been established by the Rome Treaty creating the Court; (7) the obstacles that are faced by the court; (8) other transitional justice mechanisms in an ongoing attempt to provide accountability and redress where serious infringements of international human rights and humanitarian law have occurred; and (9) a South African perspective of the past and current status of international law in domestic law. It has established that although the sovereignty and equality of states remains a cornerstone of international law, inroads have been made into the doctrine of absolute state sovereignty to the extent that it is now universally recognised that certain crimes are so reprehensible in their nature, that they warrant prosecution wherever they are committed, no matter by whom they are committed. It has further established that international criminal law and justice did not evolve overnight and most of its current status is ascribable to unfortunate and indescribable human suffering. It has provided a historical perspective of the early attempts to regulate the waging of war, and showed the impact of the International Military Tribunal at Nuremberg and Tokyo, most significantly establishing individual accountability as opposed to only state accountability. The latter development led to an introduction, resurgence and development of human rights and particularly humanitarian law subsequent to World War II, to the extent that the destiny of international criminal law is unavoidably interwoven with the former two branches of international law. It proceeded to record and demonstrate the impact on international law generally and international criminal law in particular, with the establishment of the ICTY and the ICTR. It has demonstrated that the establishment of these two ad hoc tribunals provided impetus to renewed calls for the establishment of a permanent International Criminal Court and has greatly contributed to the recording and further development of international criminal law. Lastly, it has provided much impetus for states to exercise universal jurisdiction over prosecution of core crimes. The latter impetus provided the background to a chapter in this work indicating positive steps by states to exercise universal jurisdiction. It proceeded to provide the historical background for the eventual establishment of the International Criminal Court and concurrently demonstrated its impact on the development of an international order of justice. The research provided a brief analysis of transitional justice models in recent times, contributing to an analysis of what lessons may be learned from these attempts of various transitional societies. It then proceeded to provide a South African perspective, particularly the evolution of the status of international law in South African domestic law. The thesis concluded that the need for a consistent international criminal justice order is validated and although the international community is continually shocked by ongoing atrocities around the globe, significant progress has been made in recent decades to extend the international rule of law.