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Preface xi
Abbreviations xiii
General Introduction
Introduction 1
Setting of the Book 5
Scope and Limits of the Book 7
The Concept of Amnesty
Meaning, Forms and Purpose of Amnesty 9
Meaning and Forms of Amnesty 9
Meaning 9
Forms 12
Purpose of Amnesty 13
Historical Background of Amnesty 15
Amnesty in Pre-World War II Conflicts 15
Amnesty in Connection with World War II 20
Amnesty in Immediate Post-World War II Conflicts 21
Status of Amnesty Under the Laws and Customs of War Before and After 1945 22
Justification or Motive for Amnesty 24
Scope of Amnesty: Extent and Limits 27
Amnesty in International Peace Treaties 27
Amnesty in Domestic Instruments 29
Legal Effects and Consequences of Amnesty 31
Derogatory Effects 31
Effects on the Personal Liability of the Perpetrator 32
Procedural Effects 32
Critics of Amnesty 34
Summary 37
Crimes Against Humanity in International Law
Introduction 39
The Gestation Phase 40
The 1899 and 1907 Hague Conventions 40
World War I and the Coining of the Term 'Crimes against Humanity' 43
The Turkish Theatre 43
The German Theatre 44
World War II and the Legal Construction of Crimes against Humanity 46
Crimes against Humanity in the Nuremberg Charter 47
Background to the Charter 47
Condemnations Immediately Preceding the Adoption of the Charter 49
Inhumanity of Acts of Crime against Humanity 53
The Gravity or Seriousness Requirement 53
Scale of the Commission 55
Motives for the Perpetration of Crimes against Humanity 57
Requirement of a Discriminatory Motive 58
Partial Rejection of a Discriminatory Motive 63
Connection to War 64
Justification of the War Connection 65
Decline of the War Connection 67
Criminal Intent or Mens Rea 68
Repertoire of Acts of Crime against humanity 71
Murder Type of Crimes against Humanity 71
Murder and Extermination 71
Enslavement 72
Deportation or Forcible Transfer of Population 72
Imprisonment or Other Severe Deprivation of Physical Liberty 73
Torture 73
Sexual Crimes 74
Other Inhumane or Inhuman Acts 75
Enforced Disappearance of Persons 76
Persecution Type of Crimes against Humanity 76
Persecution 76
The Case of Apartheid 77
Summary 79
Individual Criminal Liability for Crimes Against Humanity
Introduction 81
Legal Sources of Individual Criminal Liability 82
The Nuremberg Charter, Judgements and Principles 84
The Nuremberg Charter as Source of International Obligations 84
Individual Criminal Liability Under the Nuremberg Charter 86
The Progeny of Nuremberg 88
Parameters of Individual Criminal Attribution 91
Participation as Basis of Liability: Extent of Participation 92
Forms of Participation 93
Participation by the Commission of a Crime 93
Participation by Complicity in a Crime 94
Planning 95
Ordering 95
Failure to Prevent or Repress the Commission of a Crime 96
Aiding and/or Abetting 97
Incitement 98
Participation by Attempting to Commit a Crime 100
Negation of Individual Criminal Liability 102
Substantive Grounds for Excluding Criminal Liability 103
Incapacity 103
Intoxication 104
Self-Defence, Defence of Another Person, Defence of Property 104
Duress or Coercion 105
Additional Grounds for excluding Criminal Liability 106
Abandonment 107
Exclusion of Jurisdiction Over Persons Under Eighteen 107
Mistake of Fact or Mistake of Law 108
Superior Orders 109
Other Grounds for Excluding Criminal Liability 109
Necessity 110
Reprisal 110
Summary 111
States Obligations in Respect of Crimes Against Humanity
Introduction 113
Conventional Sources of States' Duties Under International Law 113
International Criminal Law Conventions 114
The Four Geneva Conventions and their Additional Protocols 114
The Genocide Convention 119
The Torture Convention 120
The Apartheid Convention 121
The Rome Statute 122
General Human Rights Conventions 124
The International Covenant on Civil and Political Rights 125
The European Convention on Human Rights 127
The American Convention on Human Rights 128
The African Charter on Human and Peoples' Rights 129
The Universal Declaration of Human Rights 130
Summary 131
Customary Law Sources of States Duties 132
State Practice in Respect of Crimes against Humanity 132
Definition and Content of Practice 132
Whose Practice is Required? 133
Uniformity of Practice 134
Generality of Practice 134
Quantity of Practice 134
Continuity or Duration of Practice 136
Opinio Juris Sive Necessitatis 137
Evaluation 139
Summary 142
Other Sources of States Obligations Under International Law 142
United Nations Resolutions 142
General Assembly Resolutions 143
Security Council Resolutions 146
Reports of International Organisations 147
Decisions of International and National Tribunals 147
Conclusion 148
Amnesty Law in South Africa: Assertion of an Amnesty Exception to the General Prohibition of Crimes Against Humanity
Introduction 151
Political Background to the South African Amnesty 152
Brief History of Apartheid 152
Political Negotiations and Commitment to Amnesty 154
Legal Bases of Amnesty 156
The Indemnity Act of 1990 and the Further Indemnity Act of 1992 156
Amnesty Under the Interim Constitution 158
The Promotion of National Unity and Reconciliation Act 34 of 1995 159
Scope of Amnesty 161
Effects of Amnesty 163
Effects on the Personal Liability of the Perpetrator 163
Formal and Procedural Effects 163
Challenging the Validity of Amnesty 165
The Amnesty Law Before the Supreme Court 165
The Amnesty Law Before the Constitutional Court 167
Criticism of the South African Amnesty System 172
Limits of the Courts' Decisions on Amnesty 172
Limited Analysis of International Law 173
Departure from the Courts' Previous Interpretation of International Law 175
Limits of the Amnesty Process 177
Powers of the Truth and Reconciliation Commission 177
Definitional Limits 178
Summary 182
International Law and the Rejection of the Amnesty Exception Argument
Introduction 185
Crimes against Humanity as Delicti Jus Gentium 186
The Concept of Delicti Jus Gentium 186
Delicti Jus Gentium and Universal Jurisdiction 189
Values and Interests Protected by the Prohibition of Crimes against Humanity as Delicti Jus Gentium and their Consequences on Amnesty 193
Crimes against Humanity in Conventional International Law and their consequences on Amnesty 193
The Genocide Convention 194
The Torture Convention 195
The Rome Statute of the International Criminal Court 200
Crimes against Humanity Under Customary International Law and Amnesty 209
Crimes against Humanity as Jus Cogens Offences 213
Doctrine of Jus Cogens 213
Consequences of Jus Cogens Norms 216
Jus Cogens Offences and their Implications on States' Sovereign discretion to Grant Amnesty 218
International Crimes and Permissible Derogations under International Law 221
Derogations Based on 'Public Emergency' 221
Derogations Based on Additional Protocol II 223
Summary 226
General Concluding Assessment and Suggestions
Concluding Assessment 227
Synopsis 227
Comments 229
Suggestions 230
To States 231
To the United Nations 231
To the International criminal Court 232
Bibliography 233
Index 249
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Add Amnesty for Crimes against Humanity under International Law, Much of the recent scholarly writings and debates on amnesty have revolved around its lawfulness, when granted in respect of the most serious crimes under international law committed in the context of civil armed conflicts. The inconclusiveness of interna, Amnesty for Crimes against Humanity under International Law to your collection on WonderClub |