Rozprawy doktorskie na temat „Criminal Justice Commission”

This thesis examines the history of the Greater Dallas Crime Commission and its effectiveness within the criminal justice system. It is a private agency established fifty (50) years ago to monitor and investigate the criminal justice system. Today, it serves as a source of funding for criminal justice agencies, provides awards and recognition forums for law enforcement and lobbies for legal revisions of the criminal code. The research is designed to examine their role within the criminal justice system. Whether current crime theories are supported by the commission is central to the thesis. There are no prior studies available of crime commissions perhaps because they are privately funded and operated by civilians. Crime commissions do exert influence, politically and financially, upon law enforcement. It is reflected often in their history. The extent of this effect is the subject of the paper. To this end, the commission's role in changing state laws, providing funds for police training, recognizing prosecutors and paying awards to informants lends credibility to their role in the criminal justice system. Their function has often changed during the fifty-year history. If there is a deficit, it may be that the commission has the capability, through its sphere of influence, of encouraging civilian actions that may conflict with law enforcement policy. Some examples of these are included in the study.

This thesis traces the Fitzgerald Inquiry from its embryo stage, when public pressure forced its establishment after a Four Corners program, right through its hearings, its report and recommendations to the implementation of its major recommendations. These recommendations included the establishment of the Criminal Justice Commission (CJC) and the Electoral and Administration Reform Commission (EARC) who were charged with the responsibility of reforming the Criminal Justice, Administration and electoral systems in Queensland. The thesis follows the work of the CJC and the Parliamentary Criminal Justice Committee (PCJC) principally through the 1989-1992 period but also through to 1996. It examines how the Fitzgerald reform recommendations were implemented in practice and makes an assessment of how they worked. There are a range of other broader issues examined including the role of the Parliamentary process and media and their relationship with the Fitzgerald Inquiry and the CJC. The major thrust, however, centres around the window of opportunity opened up by the Fitzgerald Inquiry and whether it achieved in practice what Fitzgerald intended and what stage that work had reached by 1996. Inevitably the work also examines the on-going political relationship between the Fitzgerald recommendations, the CJC, the government of the day and politicians. In particular, the CJC necessary intrusion into the political domain to carry out its responsibilities under the Criminal Justice Act. This is the first complete · examination of the Fitzgerald period from 1987 to 1996.

This thesis traces the Fitzgerald Inquiry from its embryo stage, when public pressure forced its establishment after a Four Corners program, right through its hearings, its report and recommendations to the implementation of its major recommendations. These recommendations included the establishment of the Criminal Justice Commission (CJC) and the Electoral and Administration Reform Commission (EARC) who were charged with the responsibility of reforming the Criminal Justice, Administration and electoral systems in Queensland. The thesis follows the work of the CJC and the Parliamentary Criminal Justice Committee (PCJC) principally through the 1989-1992 period but also through to 1996. It examines how the Fitzgerald reform recommendations were implemented in practice and makes an assessment of how they worked. There are a range of other broader issues examined including the role of the Parliamentary process and media and their relationship with the Fitzgerald Inquiry and the CJC. The major thrust, however, centres around the window of opportunity opened up by the Fitzgerald Inquiry and whether it achieved in practice what Fitzgerald intended and what stage that work had reached by 1996. Inevitably the work also examines the on-going political relationship between the Fitzgerald recommendations, the CJC, the government of the day and politicians. In particular, the CJC necessary intrusion into the political domain to carry out its responsibilities under the Criminal Justice Act. This is the first complete examination of the Fitzgerald period from 1987 to 1996.

The role of alternative justice mechanisms (AJMs) in international criminal justice (ICJ) has been the subject of rigorous debate in recent years. This thesis joins the discussion by investigating whether AJMs can achieve the aims of ICJ that are attributed to criminal prosecutions. If AJMs can attain ICJ goals, there are important implications for the entire complementarity regime at the International Criminal Court (ICC), requiring ICC judges to defer prosecutions in their favour. By establishing a framework against which ICC trials and AJMs can be evaluated, the thesis contributes to the debate and aims to provide an element of consistency in an area which is dominated by creative ambiguity. Arguing that criminal prosecutions have a limited impact on ICJ aims, the thesis considers AJMs generally before undertaking an in-depth historical and comparative analysis of the Mato Oput process in Uganda and the South African Truth and Reconciliation Commission (SATRC). It concludes that Mato Oput does not satisfy the goals of ICJ and therefore would be unlikely to persuade the Court to defer prosecutions. It suggests, however, that an AJM based on the SATRC model would have the potential to attain many ICJ goals and therefore the ICC should declare a situation where the state adopts this method of justice and accountability inadmissible to the ICC. Finally, the thesis examines the decisions of the ICC judges in previous admissibility challenges and argues that they must demonstrate a broader and more flexible approach when interpreting the ICC's mandate if AJMs are to satisfy the complementarity principle. Doing so would also help to avert the growing antipathy of many African states towards the ICC and ensure the future support and co-operation of states parties.

This thesis sets out to provide a deep analysis of the mechanisms for review of convictions in New Zealand and England after initial appeal rights are exhausted, and to identify the key areas of similarity and difference between these systems, the reasons for these differences, and their implications. The appeal systems in each jurisdiction are briefly examined, alongside the pressures and restrictions on their functioning. Particular attention is paid to the options for appeal out of time, and for revisiting appeal decisions if new material comes to light. The main discussion is of the specialist procedures for review of suspect convictions in each jurisdiction: the Royal Prerogative of Mercy process carried out by the New Zealand Ministry of Justice and the work of the English Criminal Cases Review Commission. This discussion presents the results of empirical research carried out by the author utilising the files of each of these bodies. It investigates the legal context in which each body functions, and provides an account of how each body functions in practice, by examining the circumstances in which each body will contemplate referring a matter back to an appeal court and the means by which a determination is made as to whether to do so in an individual case. In addition it examines the various factors (legal and non-legal) which impact on their work. Finally, the key features of the two systems are contrasted, with a discussion of the areas of similarity and difference, as well as the possible implications of these, in particular for reform of the New Zealand processes.

Kenya&rsquo
s December 2007 Presidential elections sparked a wave of violent clashes over allegations of election rigging. The protests broke out along ethnic lines, causing greater civil unrest. There have been allegations that during these outbreaks of violence crimes against humanity were committed. This violence attracted world-wide concern and was universally condemned. Kenya is loathe to prosecute the perpetrators or those who bear the highest responsibility for the alleged commission of crimes against humanity. It has instead established a national investigatory mechanism, the Kenyan Truth, Justice and Reconciliation Commission (hereafter TJRC). This approach adopted by Kenya has been criticized for the fact that it fosters a culture of impunity. However, the Prosecutor of International Criminal Court (hereafter ICC) has used his proprio motu powers to initiate an investigation of alleged commission of crimes that fall within the jurisdiction of the Court. This research paper has analysed the reasons for the proprio motu intervention of the ICC in Kenyan situation. It also examined whether Kenya was unwilling or genuinely unable to prosecute the perpetrators of the post-election violence of 2007. Furthermore, the paper 
evaluated the provisions of the Kenyan TJRC, the major shortcomings of the Commission and the challenges it is facing in fulfilling its mandate. In conclusion the paper analysed the relationship between TJRC and ICC and re-evaluate any role that the two bodies could play in dispensing justice in Kenya. But before that, the paper laid down the factual 
background that led to the proprio motu interevention of the ICC in Kenya where a truth commission had alreday been established.

 

Transitional justice has undergone tremendous shifts since it was first used in Latin American and Eastern European countries to address post-authoritarian and post-communist legacies of atrocity and repression. In particular, the establishment of the International Criminal Court (ICC) has increased the demand for prosecutions within a field that was previously marked by compromise and non-prosecution. While there are increasing expectations that countries with unresolved claims of human rights abuses should enact transitional justice policies, most of the literature on the subject largely omits to explain how elites from those countries choose among the possible options of transitional justice, and specifically, how they choose among international prosecutions, domestic prosecutions, and truth-seeking. Using case studies of Kenya and Uganda, this dissertation examines this decision-making process to understand how elites choose and reject different transitional justice policies. Theoretically, the research examines how preferences for transitional justice policies are constituted through “judicial statecraft”: the strategic efforts by heterogeneous, interest-pursuing elites to use justice-related policies as carrots and sticks in the overall contestation of power. The research finds that the choices of elites about judicial statecraft depend on three factors: the extent to which the elites are secure that their policy choices cannot be subverted from within; the cost and credibility of transitional justice threats; and the effects, both intended and unintended, of history.

The reform measures recommended by the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (referred to as the "Fitzgerald Inquiry") radically transformed the face of policing in Queensland. The most significant of these recommendations was the establishment of an external oversight body, the Criminal Justice Commission (CJC), which has independence from executive government and holds the power to investigate not only police but any public servant or politician. Other recommendations included "Whistleblower" legislation, increasing sanctions for serious misconduct, lateral recruitment and promotion by merit rather than seniority. The first main research question tested in this thesis is whether these reform measures have produced improvements in the following areas: the efficiency and effectiveness of the processes for dealing with complaints against police; public confidence in those processes and the public standing of the Queensland Police Service (QPS) generally; standards of police behaviour; the incidence of corrupt conduct; and police attitudes towards reporting misconduct by their fellow officers. These Fitzgerald Inquiry reforms were strategies primarily derived from two schools of thought describing the nature and cause of police corruption: deterrence based theory (including "individual" or "rotten apple" theory) and cultural (also labeled "cultural" or "socialisation") based theory. To date most strategies used to combat police corruption have been underpinned by these theories. A third theory - situational based theory (sometimes titled "environmental" or "opportunity" theory) - which has had success in crime prevention, has been scarcely used in the area of police corruption. However, an extensive body of research has affirmed the effects of situational factors on police behaviour, suggesting the potential for the application of situational crime prevention initiatives in combatting police corruption. The second research question proposed in this thesis is whether situational based theory could also be beneficial in the prevention of police corruption. Data drawn upon to test the first research question were interviews and surveys with police officers, public attitude surveys and statistics from the processing of complaints against police. Although each source has limitations, collectively the data are sufficiently comprehensive - and robust - to defend conclusions about the general direction of the changes which have occurred. These data indicate that the Fitzgerald Inquiry reforms have, at least to some degree, had their intended impact on the QPS. These reforms have contributed to an apparent improvement in public confidence in the complaints system and the QPS generally. Moreover, the available evidence suggests that the Fitzgerald Inquiry reforms have resulted in a weakening of the police code of silence. As far as the specific issue of corruption in the QPS is concerned, it is difficult to draw firm conclusions from existing data sources. However, the weight of the available evidence is that such conduct is less pervasive and occurs at lower levels than was the case in the pre-Fitzgerald Inquiry QPS. It is very difficult to ascertain which reform components were the most effective and which were not helpful at all, as these reform measures were initiated simultaneously. For example, the negative elements of the police culture may have been eliminated or reduced but whether it was the cultural strategies or one of the deterrence based strategies influencing officer behaviour remains unknown. The second main research question the thesis poses is that the use of situational crime prevention techniques has potential for contributing to the prevention of police corruption. A situational analysis of complaints against police data, including the development of a typology for classifying types of police corruption and misconduct, was used as an example of how this may be accomplished in Queensland. The study provides some, albeit limited, support for the hypothesis that situational crime prevention methods are applicable to police corruption. Based upon three years of complaints data, enough homogenous cases were gathered to enable the analysis of four categories of police corruption - Opportunistic Thefts, Driving under the Influence, Assault (while off-duty), and Theft from Employer. Given that this study only used three years of complaints data held by the CJC and more than nine years of data exist, productive situational analyses of many other categories of corruption is probable. This study also illustrated that complaints against police data are being under utilised by the QPS and the CJC. For future research in the situational analysis of complaints data, I recommend improving the gathering of data from complaints files for storage in electronic form to enable situational prevention analysis to be conducted more readily. A geographical example was used to illustrate further how complaints against police data could be more extensively utilised as a prevention tool. This analysis was conducted at an organisation unit level determined primarily by geographical factors. The complaint patterns of units of similar "task environments", as measured by unit size and type of duties performed, were compared in an attempt to identify those units experiencing the presence or absence of "bad apples" or a "negative culture". This study led to the conclusion that a divisional analysis of complaints data can provide information valuable in combatting police corruption. When task environment was held constant, it was possible to identify units experiencing the effects of possible "bad apples" and/or "negative cultures". Once these particular units were identified, intervention strategies to address the units' particular problem could be constructed. Future research in this area would involve ongoing divisional data analysis followed-up by individual assessment of officers identified as "bad apples", or a "compare-and-contrast" procedure to distinguish features requiring correction in units identified as having a "negative culture". The research findings presented in this thesis are that progress has occurred in a number of areas in addressing the problems identified by the Fitzgerald Inquiry, but that there is undoubtedly scope for more to be achieved. Despite the very significant increase in the resources and powers available to investigators post-Fitzgerald, it is still difficult to prove that a police officer engaged in misconduct, or that other officers were aware of this fact and had failed to take action, because of the constraints imposed by evidentiary and legal requirements. Thus, while it is vital to maintain an effective and credible independent complaints investigation system and ensure that there is a proper internal discipline process in place, the scope for increasing the "deterrent power" of the present system is limited. Putting more resources into complaints investigations might make a difference at the margins, but is unlikely to lead to a significant increase in the probability of a complaint being substantiated and a sanction imposed. Investing more resources in investigations has an additional cost in that such resources are then lost to other efforts to combat corruption that may provide more fruitful results in the long term. The value of an occasional substantiation is placed above the ability to engage in a large amount of prevention work. Inevitably then, three clear messages are apparent. First, continued effort must be made to modify the organisational climate of the QPS in terms of commitment to integrity. Recommended strategies to accomplish this end are to continue the recruitment of more educated, female and older officers to reduce police-citizen conflict and the negative elements of the police culture, and also to develop a comprehensive, integrated approach to ethics education for QPS officers at all ranks and positions. Second, other forms of deterrence against misconduct are needed such as the use of covert strategies like integrity testing which could be conducted in conjunction with the CJC. Third, a greater emphasis needs to be placed on developing and implementing preventive strategies. This thesis has shown that valuable prevention strategies can be gained from situational and divisional analysis of complaints data, and a range of proactive management options based upon situational crime prevention theory are recommended. These strategies have application in any police service.
Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
School of Criminology and Criminal Justice
Arts, Education and Law
Full Text

Anthony Downs public choice theory proposes that every rational person would try to meet their own desires in preference to those of others, and that such rational persons would attempt to obtain these desires in the most efficient manner possible. This thesis submits that the application of this theory would mean that public servants and politicians would perform acts of corruption and maladministration in order to efficiently meet their desires. As such action is unavoidable, political parties must appear to meet the public demand for accountability systems, but must not make these systems viable lest they expose the corruption and maladministration that would threaten the government’s chance or re-election. The thesis demonstrates this hypothesis through a study of the history of the public sector in Queensland. It shows that all governments have displayed a commitment for accountability whilst simultaneously ensuring the systems would not be able to interfere with government control or expose its flaws.

Anthony Downs public choice theory proposes that every rational person would try to meet their own desires in preference to those of others, and that such rational persons would attempt to obtain these desires in the most efficient manner possible. This thesis submits that the application of this theory would mean that public servants and politicians would perform acts of corruption and maladministration in order to efficiently meet their desires. As such action is unavoidable, political parties must appear to meet the public demand for accountability systems, but must not make these systems viable lest they expose the corruption and maladministration that would threaten the government’s chance or re-election. The thesis demonstrates this hypothesis through a study of the history of the public sector in Queensland. It shows that all governments have displayed a commitment for accountability whilst simultaneously ensuring the systems would not be able to interfere with government control or expose its flaws.

The English School focuses on the issue of humanitarian intervention, because "it poses the conflict between order and justice in international relations in its starkest form. " This thesis posits that international investigations and prosecutions of atrocity crimes poses the conflict between order and justice in international relations in an equally stark form. Diplomatic attempts to facilitate a negotiated settlement to an armed conflict (order) may be undermined by attempts to investigate and prosecute atrocity crimes (justice), particularly where individuals deemed crucial to any settlement become the specific focus of investigations. Similarly, attempts to arrest individuals indicted for atrocity crimes (justice) in post-conflict environments, may in some instances lead to the nascent, fragile peace (order) breaking down where their supporters retain the capacity to act in a destabilising manner. The thesis explores these tensions between order and justice by focusing on the challenges faced by the Commission of Experts and the International Criminal Tribunal for the former Yugoslavia during their attempts to investigate and prosecute atrocity crimes.

Throughout the past three decades the world has witnessed an increased transition of states from autocratic systems to liberal democracies. During such transitions the reconciliation of societies fractured by previous human atrocities is an integral part for success. This article explores the impacts of principles of truth and justice on reconciliation of fractured societies during the process of transitional justice. Throughout the process it will provide an insight on different aspects and levels of the terminology of reconciliation. To illustrate the difference between a judicial approach and the process of amnesty giving, it will contrast the International Criminal Tribunal for the Former Yugoslavia and the Truth and Reconciliation Commission of South Africa. Furthermore, it will provide an analytical account on the impact of internal actors versus external actors on reconciliation of fractured societies. This analysis will provide an understanding of the factors at work during reconciliation as a process and an outcome.

Thesis (M.A. in Security Studies (Homeland Security and Defense))--Naval Postgraduate School, March 2010.
Thesis Advisor(s): Bergin, Richard ; Josefek, Robert. "March 2010." Description based on title screen as viewed on April 28, 2010. Author(s) subject terms: Arizona Criminal Justice Commission, biometrics technology, biometrics identification, facial recognition, fingerprint identification, law enforcement, information sharing, criminal information sharing, Arizona, Mexico, New Mexico, Texas, California, RISC, AFIS, IAFIS, NGI, governors border conferences, Central America, south west border initiative. Includes bibliographical references (p. 87-92). Also available in print.

The reform measures recommended by the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (referred to as the "Fitzgerald Inquiry") radically transformed the face of policing in Queensland. The most significant of these recommendations was the establishment of an external oversight body, the Criminal Justice Commission (CJC), which has independence from executive government and holds the power to investigate not only police but any public servant or politician. Other recommendations included "Whistleblower" legislation, increasing sanctions for serious misconduct, lateral recruitment and promotion by merit rather than seniority. The first main research question tested in this thesis is whether these reform measures have produced improvements in the following areas: the efficiency and effectiveness of the processes for dealing with complaints against police; public confidence in those processes and the public standing of the Queensland Police Service (QPS) generally; standards of police behaviour; the incidence of corrupt conduct; and police attitudes towards reporting misconduct by their fellow officers. These Fitzgerald Inquiry reforms were strategies primarily derived from two schools of thought describing the nature and cause of police corruption: deterrence based theory (including "individual" or "rotten apple" theory) and cultural (also labeled "cultural" or "socialisation") based theory. To date most strategies used to combat police corruption have been underpinned by these theories. A third theory - situational based theory (sometimes titled "environmental" or "opportunity" theory) - which has had success in crime prevention, has been scarcely used in the area of police corruption. However, an extensive body of research has affirmed the effects of situational factors on police behaviour, suggesting the potential for the application of situational crime prevention initiatives in combatting police corruption. The second research question proposed in this thesis is whether situational based theory could also be beneficial in the prevention of police corruption. Data drawn upon to test the first research question were interviews and surveys with police officers, public attitude surveys and statistics from the processing of complaints against police. Although each source has limitations, collectively the data are sufficiently comprehensive - and robust - to defend conclusions about the general direction of the changes which have occurred. These data indicate that the Fitzgerald Inquiry reforms have, at least to some degree, had their intended impact on the QPS. These reforms have contributed to an apparent improvement in public confidence in the complaints system and the QPS generally. Moreover, the available evidence suggests that the Fitzgerald Inquiry reforms have resulted in a weakening of the police code of silence. As far as the specific issue of corruption in the QPS is concerned, it is difficult to draw firm conclusions from existing data sources. However, the weight of the available evidence is that such conduct is less pervasive and occurs at lower levels than was the case in the pre-Fitzgerald Inquiry QPS. It is very difficult to ascertain which reform components were the most effective and which were not helpful at all, as these reform measures were initiated simultaneously. For example, the negative elements of the police culture may have been eliminated or reduced but whether it was the cultural strategies or one of the deterrence based strategies influencing officer behaviour remains unknown. The second main research question the thesis poses is that the use of situational crime prevention techniques has potential for contributing to the prevention of police corruption. A situational analysis of complaints against police data, including the development of a typology for classifying types of police corruption and misconduct, was used as an example of how this may be accomplished in Queensland. The study provides some, albeit limited, support for the hypothesis that situational crime prevention methods are applicable to police corruption. Based upon three years of complaints data, enough homogenous cases were gathered to enable the analysis of four categories of police corruption - Opportunistic Thefts, Driving under the Influence, Assault (while off-duty), and Theft from Employer. Given that this study only used three years of complaints data held by the CJC and more than nine years of data exist, productive situational analyses of many other categories of corruption is probable. This study also illustrated that complaints against police data are being under utilised by the QPS and the CJC. For future research in the situational analysis of complaints data, I recommend improving the gathering of data from complaints files for storage in electronic form to enable situational prevention analysis to be conducted more readily. A geographical example was used to illustrate further how complaints against police data could be more extensively utilised as a prevention tool. This analysis was conducted at an organisation unit level determined primarily by geographical factors. The complaint patterns of units of similar "task environments", as measured by unit size and type of duties performed, were compared in an attempt to identify those units experiencing the presence or absence of "bad apples" or a "negative culture". This study led to the conclusion that a divisional analysis of complaints data can provide information valuable in combatting police corruption. When task environment was held constant, it was possible to identify units experiencing the effects of possible "bad apples" and/or "negative cultures". Once these particular units were identified, intervention strategies to address the units' particular problem could be constructed. Future research in this area would involve ongoing divisional data analysis followed-up by individual assessment of officers identified as "bad apples", or a "compare-and-contrast" procedure to distinguish features requiring correction in units identified as having a "negative culture". The research findings presented in this thesis are that progress has occurred in a number of areas in addressing the problems identified by the Fitzgerald Inquiry, but that there is undoubtedly scope for more to be achieved. Despite the very significant increase in the resources and powers available to investigators post-Fitzgerald, it is still difficult to prove that a police officer engaged in misconduct, or that other officers were aware of this fact and had failed to take action, because of the constraints imposed by evidentiary and legal requirements. Thus, while it is vital to maintain an effective and credible independent complaints investigation system and ensure that there is a proper internal discipline process in place, the scope for increasing the "deterrent power" of the present system is limited. Putting more resources into complaints investigations might make a difference at the margins, but is unlikely to lead to a significant increase in the probability of a complaint being substantiated and a sanction imposed. Investing more resources in investigations has an additional cost in that such resources are then lost to other efforts to combat corruption that may provide more fruitful results in the long term. The value of an occasional substantiation is placed above the ability to engage in a large amount of prevention work. Inevitably then, three clear messages are apparent. First, continued effort must be made to modify the organisational climate of the QPS in terms of commitment to integrity. Recommended strategies to accomplish this end are to continue the recruitment of more educated, female and older officers to reduce police-citizen conflict and the negative elements of the police culture, and also to develop a comprehensive, integrated approach to ethics education for QPS officers at all ranks and positions. Second, other forms of deterrence against misconduct are needed such as the use of covert strategies like integrity testing which could be conducted in conjunction with the CJC. Third, a greater emphasis needs to be placed on developing and implementing preventive strategies. This thesis has shown that valuable prevention strategies can be gained from situational and divisional analysis of complaints data, and a range of proactive management options based upon situational crime prevention theory are recommended. These strategies have application in any police service.

Magister Legum - LLM
The concept of transitional justice keeps changing as the concept of conflict changes. The paper analyses the transitional justice process in Kenya after the 2007-2008 Post-Election Violence. Very little has been written on the success or failure of transitional justice in Kenya after eight years of the implementation of transitional justice mechanisms which included truth commission, criminal prosecutions and recommendations on reparations. Furthermore, the architects of Kenya’s transitional justice process failed to put in place a mechanism against which the progress of transitional justice could be measured. It was therefore necessary to analyse the overall transitional justice process in Kenya to determine its efficacy. Kenya’s transitional justice process seemed to be a stand-alone occurrence with no ties to the laws or the various institutions in the country compared to Uganda's national transitional justice policy. The transitional justice process as a whole did not assign rights and responsibilities to the public, the three arms of government, the devolved governments, civil society or non-governmental organisations so that the various stakeholders could then check and balance each other with the aim of ensuring that transitional justice would be implemented. To date, there are still calls for the full implementation of the transitional justice processes especially in light of the International Criminal Court having terminated the last case in relation to the post-election violence as well as Kenya’s impending general elections in 2017. This paper begins by introducing transitional justice in Kenya and providing the 2007-2008 PEV as a background. The paper then investigates the ideal circumstances for implementing transitional justice mechanisms. In the case of Kenya, it is concluded that the situation in 2007-2008 PEV did not conform to the traditional context of societies in transition. Whereas there was no regime change that preceded the 2007-2008 PEV, there were human rights violations which were ethnically driven. The study illustrates how the violation of human rights depended on the ethnic tribe the person belonged to, hence identifying the main problem in the 2007-2008 PEV as negative ethnicity. Looking at the contextual precedence set by Latin American countries and later followed by other countries undergoing change, ethnicity has not been dealt with and to this extent Kenya presents a unique situation. The paper concludes that each of the transitional justice mechanisms implemented in Kenya had no impact on Kenya and as a result, the whole transitional justice process had failed. The paper recommends that stakeholders address and solve the inter-tribal fears and suspicions in order to create an opportunity for the different tribes to establish a relationship based on transparency. In the alternative, the paper recommends the adoption of the Territorial Self-Governance (TSG) which allows ethnic groups in a particular sovereign region to regulate their own affairs thus reducing the risk of ethnic tensions on account of one group's concerns not being addressed adequately. Ultimately, the paper recommends that the Truth Justice and Reconciliation report be tabled before Parliament for approval in order for the transitional justice mechanisms to be implemented fully.
German Academic Exchange Service ( DAAD)

Après la commission de violations des droits de l’homme et du droit international humanitaire et dans le cadre parfois d’une transition ou d’une situation post conflictuelle difficile, les Commissions vérité ont été de plus en plus créées au sein des Etats. Parce qu’elles sont destinées à l’examen de violations de règles établies en droit international, se pose la question de leur rapport avec ce droit. Par leurs spécificités formelles et la flexibilité de leurs règles, leur utilisation du droit international et leur prise en compte des victimes, elles constituent un cadre particulièrement novateur dédié à l’examen des violations des droits de l’homme et du droit international humanitaire. Cependant, instances non judiciaires et eu égard aux évolutions du droit international, elles conduisent à s’interroger sur la responsabilité pour ces violations et des obligations internationales de l’Etat à cet égard, et à exiger la mise en œuvre de la responsabilité pénale pour la commission des violations les plus graves qu’elles ont constatées
In time of transition or in post conflict situations, many truth Commissions have been increasingly created within many States to deal with a past caracterised by many human rights and international humanitarian law violations. Because they are dedicated to investigate violations of established rules of international law, the question emerge on their relationships with international law. Their formal characteristics and their flexibility, their use of international law and the focus and attention they give to the victims of these violations, make them appear to be an innovative mean allowing specific review of violations of human rights and international humanitarian law. However, because there are non-judicial bodies and taking into consideration the developments of international law, they raise questions about responsibility for these violations and international obligations of the State in this regard, and lead to the requirement of prosecution and the implementation of criminal liability for the serious violations they reported

La justice est un attribut fondamental de l’Etat moderne. Elle assure, dans unesociété démocratique, la sauvegarde de l’édifice normatif ainsi que la protection des droitset libertés. Une justice indépendante et efficace est un symbole de l’Etat de droit. Ellerévèle la réalité de la séparation des pouvoirs et consacre le règne du droit. Maisl’efficacité de tout appareil judiciaire dépend de la nature et de l’ampleur des moyens dontil dispose. Or, dans nombre d’Etats francophones, le système judiciaire connaît denombreuses faiblesses, liées tantôt aux avatars des processus de stabilisationdémocratique, tantôt aux situations plus fragiles de sortie de crise. La question durenforcement des capacités des institutions judiciaires se trouve ainsi posée. Et c’est surcette base que l’Organisation Internationale de la Francophonie (OIF) a investi, depuisune trentaine d’années, le champ de la coopération juridique et judiciaire. Ayant inscrit lapromotion de la démocratie au coeur de son action politique, la Francophonie a pris desengagements forts et développé, en s’appuyant sur ses réseaux institutionnels, desprogrammes destinés à accompagner ses Etats membres dans le renforcement descapacités de leurs systèmes de justice. Cet engagement est perceptible dans le corpusnormatif de l’Organisation. Il marque la ferme volonté des Etats francophones d’ancrerleurs relations dans un cadre de coopération, attaché à la protection des droitsfondamentaux et à la régulation des pouvoirs majoritaires. La justice est donc désormaisérigée en priorité dans le champ des préoccupations francophones. Elle y est saisie tantaux niveaux national et international que dans sa dimension transitionnelle
Justice is a fundamental attribute of modern States. In a democratic society, itguarantees the safeguard of the standard-setting framework as well as the protection ofrights. An independent and effective justice is a symbol of the rule of law. It illustrates theseparation of powers and establishes the primacy of law. But the efficiency of any judicialsystem depends on the nature and the extent of the resources at its disposal. Yet, inmany Francophone countries, the judicial system faces many weaknesses, sometimesrelated to the avatars of democratic stabilisation processes, sometimes to more fragilepost-crisis situations. So the question of the capacity development of the judicialinstitutions arises. For thirty years, the International Organization of La Francophonie(OIF) has entered the legal and judicial cooperation field on this basis. By including thepromotion of democracy at the heart of its political action, the OIF has indeed made strongcommitments and developed programs aimed at accompanying its member States in thecapacity development of their justice systems, thanks to its institutional networks. Thiscommitment can be seen in several statements of the Organization. It demonstrates thewill of the Francophone States to anchor their relationships in a cooperation framework,dedicated to the protection of fundamental rights and the regulation of majorities’ powers.Today, justice is consequently established as a priority in Francophone concerns. It isentered in both national and international level and in its transitional dimension

Thesis (L.L.D.)--University of Pretoria, 2005.
Title from PDF t.p. (viewed on July 22, 2006). "Submitted in fulfilment of the requirements for the degree Doctor of Laws (LLD) in the Faculty of Law, University of Pretoria." Includes bibliographical references (p. 355-386).

Queensland's political history has been built upon a culture of developmentalism, particularly at the cost of environmental protection. This has been a prominent feature in the policies of past Queensland Premiers such as T.J. Ryan, Ted Theodore, William McCormack, Forgan Smith, Frank Nicklin, Johannes Bjelke-Petersen and Wayne Goss. The policies pursued by many of these Premiers often resulted in the destruction of many sensitive environmental areas, of which the effects are still evident today. This study examines how anti-environmentalism has been a recurrent theme in state politics, as well as examining the extent to which industry has influenced governmental policies toward developmentalism. In particular, this research explores in depth the theory of 'regulatory capture' and examines the extent to which this is applicable to the Queensland context. A secondary issue which is explored is that of the development of a culture of nonenforcement within government departments. The testing of these theories is conducted through an analysis of the Queensland Criminal Justice Commission Inquiry into the Improper Disposal of Liquid Waste in South-East Queensland. The outcome of this thesis certainly demonstrates that state government departments responsible for environmental protection were negligent in fulfilling their roles. This thesis will highlight how such departments were 'captured' by the interests of industry to the extent that they failed to administer and enforce effective environmental legislation. It also raises the possibility that, as a result, administrators were guilty of official misconduct. Finally this thesis argues that while departmental culture is so strongly embedded in pro-development policies, responsibility for the environment should be centralised in an agency whose sole responsibility would be environmental protection. Such an agency could be an Environmental Protection Authority.

Petróleo Brasileiro S.A.
O trabalho expõe a consolidação do direito à verdade pelo Direito Internacional e a complementaridade entre as comissões da verdade e os tribunais, mecanismos de justiça de transição, como a combinação que melhor lhe confere aplicabilidade. Primeiramente, a tese reivindica que a transição e a consolidação democrática devem se dar por meio da prestação de contas com o passado, o que se torna possível na medida em que se promoveram a partir da 2a Guerra Mundial significativas alterações no Direito Internacional, que se afasta do paradigma vesfaliano de soberania. Aborda-se assim o excepcional desenvolvimento do Direito Internacional dos Direitos Humanos, do Direito Internacional Humanitário e do Direito Penal Internacional, centralizados na ideia de responsabilidade. A tese também abrange o desenvolvimento do direito à verdade no seio da Organização das Nações Unidas e dos sistemas regionais de proteção de direitos humanos, tendo alcançado o status de norma imperativa ou peremptória, sendo explorados os obstáculos ao seu exercício como no caso de anistias e outras medidas similiares como a prescrição, a justiça militar e a coisa julgada. Enfrentam-se, ainda, as potencialidades e limites da verdade que resulta de comissões da verdade e dos tribunais, concebida esta como conhecimento sobre os fatos e o reconhecimento da responsabilidade pelo ocorrido. O trabalho aborda temas como a independência e imparcialidade das comissões de verdade, seus poderes e o alcance de suas conclusões e recomendações. Por sua vez, com vistas a identificar as verdades a serem alcançadas pelos tribunais, privilegia-se o processo criminal, por se entender que a sentença penal pressupõe o exercício mais completo do devido processo. A imperatividade do direito à verdade é também demonstrada pela defesa da participação da vítima no processo criminal e da admissão de culpa por parte do acusado -- ambos consagrados pelo Tratado de Roma. Por fim, a tese analisa alguns cenários para a complementaridade entre estes dois mecanismos de justiça de transição, fazendo o estudo dos casos do Chile, Peru, Serra Leoa e Quênia, casos estes permeados pelo Direito Internacional, seja pela influência da jurisdição universal ou pelo impacto da jurisdição internacional. O caso brasileiro, por certo, não se ajusta a nenhum destes cenários. Sua caracterização como um diálogo em aberto, para efeitos deste trabalho, pressupõe que o Brasil encontra-se em um importante momento de decisão sobre a complementaridade entre comissões da verdade e tribunais - a recente aprovação da Comissão Nacional da Verdade deve conviver com o aparente conflito entre a decisão do Supremo Tribunal Federal, que afirmou a constitucionalidade da Lei de Anistia de 1979, e a decisão da Corte Interamericana no caso Araguaia, que entende nulos os dispositivos da lei que obstaculizam o processamento dos responsáveis, ambas no ano de 2010 - com a oportunidade de demonstrar que a passagem do tempo não arrefece as obrigações a que se comprometeu no cenário internacional.
The dissertation exposes the consolidation of the right to truth by international law and the complementarity of truth commissions and tribunals, both transitional justice mechanisms, as the combination that better confers its aplicability. First, the work claims that transition to and consolidation of democracy should provide accountability for past abuses, what became possible by the changes that have impacted international law after the World War II. The exceptional development of international human rights law, international humanitarian law and international criminal law is explored, considered the idea of responsability. The dissertation takes care of the development of the right to truth within the United Nations Organization and the human rights regional systems, and its status of imperative or peremptory norm, as well the obstacles for its exercise in the case of amnesties and other similar measures as statute of limitation, military justice and doble jeopardy (res judicata). The truth that results from truth commissions and tribunais its potentialities and limits are here conceived as knowledge e acknowledgment of what occured. The work also considers aspects as the independence and impartiality of truth commissions, its powers and the reach of its conclusions and recommendations. On the other hand, considering the truth to be obtained by tribunals, the dissertation priviledges the analysis of criminal procedure, in the sense that a criminal veridict implies due process. The imperativity of the right to truth is also demonstrated by the participation of victims in the criminal procedure and the admission of guilty by the accused both celebrated by the Statute of Rome. The dissertation also covers some sceneries of complementarity between truth commissions and tribunals, making use of the case of Chile, Peru, Sierra Leone and Kenya, cases that suffered significant impact by international law, considered the influence of universal jurisdiction or the impact of international jurisdiction. The Brazilian case, at the end, does not fit precisely in any of these sceneries. Its caracterization as an open dialogue assumes that the country has come face to face with the debate of complementarity the recent approval of the National Truth Commission has to live together with the apparent conflict between two decisions held in 2010: the Supreme Court on the constitutionality of the 1979 Amnesty Law and the Inter-American Court of Human Rights on the Araguaia Case that considered null and void the parts of the law that obstacle the criminal persecution of the ones responsible -, and has opportunity to demonstrate that time has not moderated the obligations to which Brasil has compromised with in the international arena.

This research seeks to establish a methodology by which transitional justice strategies ought to be incorporated within the International Criminal Court (ICC) framework. The study is based on the situation in Uganda as an example of the state that has a situation and cases before the ICC. The aim of the thesis was achieved through the adoption of a combination of theoretical legal research and the non -doctrinal approaches. This research establishes that the primary responsibility to prosecute persons suspected of violating international law lies with the states. The importance of the concept of individual criminal responsibility, the idea that every person suspected of committing the most serious offences must be held accountable regardless of status. The principle of individual criminal responsibility is further developed with the creation of the ICC. This research clarifies that there are limitations in terms of what prosecutions can achieve during transitional periods; further, that trials in the ICC and national courts can be undertaken together with proceedings of the Truth and Reconciliation Commissions or indigenous mechasims. Such an approach will allow for confines of prosecutions to be addressed. Despite the existence of principles and institutional framework that are intended to ensure individuals are held accountable for the most serious offences of international concern, the majority of individuals are not held accountable. In order for the ICC to operate effectively it would need to seek to go beyond deterrence and retribution. This would require post – conflict states to devise transitional arrangements that compel with the ICC structure. Thus the research recommends that it would be better for judicial and non- judicial measures to be adopted in states that have cases before the ICC. Particularly Uganda must adopt the mato oput method formally as a tool to address the past human rights abuses in Uganda. All persons regardless of whether they have been granted amnesty or not must be held accountable under the mato oput measures. This implies all persons with exception to those that the ICC has issued the warrants of arrest against.
Public, Constitutional and International Law
LL. D.

Rozprawa rozpatruje fenomen komisji prawdy, która w ostatnich dwóch dekadach XX wieku stała się powszechnie używanym instrumentem sprawiedliwości okresu transformacji. Do najbardziej znanych komisji należą te powstałe w Argentynie, Chile i RPA. Niemniej szereg innych instytucji, zarówno oficjalnych, jak i prywatnych określano w literaturze oraz dyskursie publicystycznym jako komisje prawdy. Podstawą dla analiz jest robocza definicja komisji prawdy, zgodnie z którą oznacza ona nadzwyczajną i ograniczoną w czasie instytucję publiczną powołaną w okresie transformacji (zarówno w procesie demokratyzacji, jak i budowy pokoju) dla zbadania zakresu naruszeń praw człowieka dokonanych w poprzednim okresie, której procedura ukierunkowana jest na ofiary tych naruszeń.
This thesis aims to examine the phenomena of the truth commission which became a commonly used measure of transitional justice in the last two decades of the 20th century. The truth commission has to be considered in the framework of the transitional justice. Among the most known truth commissions there are those in Argentina, Chile and South Africa. However, there were a lot of formal or informal institutions which were – in the literature or in the journalistic discourse – called “truth commission”. In this thesis, the truth commission is defined as an extraordinary, victim-centered and limited in time public institution set up during the transition (both democratization and peace-building) aimed at examining the scope of human rights violations in the past. According to the analysis the truth commission could be justified as the mechanism of responsibility for human rights violations only under certain conditions, when the retributive justice is suspended.

The last decade has seen the development of an unprecedented profile for aboriginal concerns over the inadequacies of the criminal justice system. This thesis examines the major commissions of inquiry that were established to address criminal justice reforms for aboriginal Canadians. Through a comparison of these inquiries, it is my intention to provide a greater understanding as to why some commissions have had a more positive role to play in initiating policy change, while others have been less than satisfactory in promoting the needs of aboriginal persons. Analysis reveals that commissions of inquiry are most often established to address more general concerns about the impact of the criminal justice system on aboriginal peoples, rather than to investigate specific cases in which there was a miscarriage of justice. My findings also reveal that the current criminal justice system can and should be improved, without in any way detracting from the movement toward the larger social, political and economic goal of self- determination. Due to the fact that autonomous solutions remain prevalent in the academic literature, future inquiries will be required to acknowledge this perspective. An appreciation of the variety of concerns held by aboriginal individuals can only be made possible through extensive consultation with aboriginal communities and utilizing creative and innovative means of gathering research. By providing an open process, commissions will be able to encompass views that may not be prevalent in academic circles, but accepted at a grass roots level. On the much larger question of the policy impact of commissions of inquiry, they have been useful institutions for opening up the policy debate in regards to criminal justice reforms for aboriginal Canadians. Frequently these inquiries have been faulted because their specific recommendations are not accepted. However, inquiries are valuable because they provide one of the few occasions for defining public issues, including debate about reformist and radical conceptions of the issues. Consequently it is more useful to assess commissions of inquiry for their role in the development of policy debate.

Depuis les années 1990, un nombre grandissant d’accusés sont déclarés non criminellement responsables pour cause de troubles mentaux au Canada (NCRTM). Si certains craignent que ce verdict représente une échappatoire à la punition et libère des individus dangereux en collectivité, d’autres s’interrogent à savoir si cette défense n’occasionnerait pas plus de contrôle qu’une peine dans le système pénal traditionnel. Certains questionnent également la capacité des Commissions d’examen à prendre des décisions qui s’écartent de la rationalité du système punitif. Objectif : Cette étude a pour but de comparer la supervision imposée aux accusés NCRTM à celle des accusés coupables et responsables (CR). Cette comparaison cherche à observer les particularités des trajectoires (durées de supervision et de détention et présence de détention dans le suivi) de ces populations, dans trois provinces canadiennes (Québec, Ontario, Colombie-Britannique) entre 2000 et 2008. Deux sources de données ont été utilisées, soit celle du National Trajectory Project of Individuals Found Not Criminally Responsible on Account of Mental Disorder in Canada pour les accusés NCRTM et celle de l’Enquête sur les tribunaux de juridiction criminelle de Statistiques Canada pour ceux déclarés CR. Résultats : Les résultats des régressions de Cox et logistiques indiquent que les accusés NCRTM sont près de trois fois et quatre fois moins susceptibles d’être libérés rapidement de supervision et de détention et sont cinq fois plus susceptibles d’être détenus que les accusés CR. Des différences importantes sont présentes dans les pratiques des provinces, mais de manière significativement plus importante chez les accusés NCRTM.
Since the 1990’s, the number of individuals found not criminally responsible on account of mental disorder has increased in Canada. However, the NCRMD verdict remains controversial. While some fear that the verdict is a loophole and releases dangerous individuals in the community, others suggest that this defense could cause more control than a sentence in the criminal justice system. Some also question the ability of Review Boards to leave aside the punitive rationale in the decision-making process. Objective: This study examines the supervison practices imposed to NCRMD accused by comparing them with those applied to offenders found guilty and responsible (GR). This comparison aims to highlight the specificities these two populations’ trajectories (length of supervision, length of detention and presence of detention in follow-up), in three Canadian provinces (Quebec, Ontario and British Columbia) between 2000 and 2008. Two datasets were used. The first comprises individuals found NCRMD (n = 1794) and comes from the National Trajectory Project of Individuals Found Not Criminally Responsible on Account of Mental Disorder in Canada. The second comprises GR offenders (n = 320,919) and comes from Statistics Canada's Criminal Court Survey. Results: The Cox and logistic regressions results show that NCRMD individuals are almost three times and four times likely to be released from legal supervision and detention respectively compared to GR offenders, and are five times more likely to be detained during follow-up. Provincial differences were also observed, theses disparities being significantly greater among NCRMD individuals.

The abolition of corporal punishment in S v Williams and Others 1995 (3) SA 632 (CC) provided the state with the impetus to consider alternative sentencing options. Unsystematic efforts by the government to reform the juvenile justice system have failed abysmally. The government was forced to review its policies on juvenile sentencing. An examination of international trends reveals the imposition of stricter measures of punishment for serious and violent juvenile offenders. Community-based sentencing options are used mainly for first-time offenders. The focus has also shifted from punishment and retribution to prevention and treatment. It is advocated that serious and violent juvenile offenders be incarcerated in secure-care facilities and/or juvenile prisons and that community-based sentencing options be utilised for first-time offenders. The government should also design programmes that deal with situations that lead to crime and delinquency
Criminal & Procedural Law
LL.M. (Law)

This study involves a critical appraisal of the legal implications of South Africa’s withdrawal from the International Criminal Court (ICC) in the context of its international and regional human rights obligations. The dissertation also investigates the history and formation of the ICC, South Africa’s involvement and its role as a guardian of international and regional human rights obligations in Africa. The study reviews the circumstances leading to South Africa’s notice of withdrawal from the ICC, including the legal implications and international human rights obligations. This inquiry considers South Africa’s proposed withdrawal from the ICC which is supported by points of departure and a comprehensive literature review. The decision to withdraw from the ICC is considered to be a political one. However, this study raises questions about the executive’s withdrawal in regard to its domestic, regional and international human rights obligations, irrespective of whether it is a member of the ICC. The study surveys the background to South Africa’s participation in the ICC, its membership of the African Union and the implications of ICC membership including the obligations imposed on member states.
Criminal and Procedural Law
LL. M.