Domestication of the international-law prohibition of child soldiering
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
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- Date Issued: 2020
Critical reflections on the war on terrorism from an international human rights perspective
- Authors: Fabbriciani, Antonio Antonino
- Date: 2010
- Subjects: Human rights , War on Terrorism, 2001-2009 , Civil rights , International law
- Language: English
- Type: Thesis , Doctoral , DPhil
- Identifier: vital:9041 , http://hdl.handle.net/10948/1205 , Human rights , War on Terrorism, 2001-2009 , Civil rights , International law
- Description: This study explored the balancing out of the rights associated with terrorist and counter-terrorist attacks by using descriptive case studies of the US 9/11 attacks; and the counter-terrorist attacks on Afghanistan and Iraq. The research was conducted within a critical theory paradigm, drawing on the ideas of Habermas and other Critical Theorists. The research design was influenced by the securitive and ideological nature of the topic and it was decided that an extensive review of literature would be more suitable than a field study. A small number of interviews added to the richness of the data. Human rights, needs and international relations were investigated to serve as a theoretical starting-point for the study (Chapter 2). The case studies were subsequently explored against the background of this theoretical approach. This thesis therefore assessed the impact of human rights law on terrorism and counter-terrorism attacks under the Human Rights Act (1998). It considered how the provisions of the Human Rights Act have influenced the formulation and interpretation of anti-terrorism laws, and it examined the role of the judiciary in adjudicating disputes between the individual and the state. It further discussed human needs and the progress on human rights, terrorist attacks, as well as counter-terrorism attacks. Extensive data was gathered on the 9/11 attacks, and it was concluded that these attacks fall within the definition of crimes against humanity under international human rights jurisprudence. To bring about a truly secure world we must adopt a new paradigm that shifts priority to the security of the individuals and of communities to achieving human security, the honouring of human rights, and respect for the rule of law. This will obviously require a renewed commitment by all individuals and a shared sense of responsibility for all people, all over the world. What we need now is a major course correction – a new iii A. Fabbriciani approach which begins with a broader understanding of what defines human rights and the rule of law (Wilson, 2007). The study also focuses on counter-terrorist attacks in Afghanistan and Iraq (Chapters 3 and 4). It was shown that counter-terrorist attacks had an effect on the global economic system and development policies, which have been dominated by ideological strategies for many years. However, resistance has come from Islamic states, which have realised that new-liberal economic practices are incompatible with their theological and economic traditions. This has caused a situation to rethink global development programmes by political leaders, and to move away from new-liberal schemes towards true global development strategies. One of the main findings of the study was that the crimes of persecution and torture on the basis of political or religious views have been perpetrated by both parties, namely Al-Qaeda, and the US and its allies. It has been shown that the explored acts of terrorism and counter-attacks represent crimes against humanity, as defined by the relevant provisions of international law.
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- Date Issued: 2010
Sending and receiving: immunity sought by diplomats committing criminal offences
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
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- Date Issued: 2009