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See detailA cosmopolitan international law: the authority of regional inter-governmental organisations to establish international criminal accountability mechanisms
Owiso, Owiso UL

Doctoral thesis (2022)

The overall aim of this thesis is to investigate the potential role of regional inter-governmental organisations (RIGOs) in international criminal accountability, specifically through the establishment of ... [more ▼]

The overall aim of this thesis is to investigate the potential role of regional inter-governmental organisations (RIGOs) in international criminal accountability, specifically through the establishment of criminal accountability mechanisms, and to make a case for RIGOs’ active involvement. The thesis proceeds from the assumption that international criminal justice is a cosmopolitan project that demands that a tenable conception of state sovereignty guarantees humanity’s fundamental values, specifically human dignity. Since cosmopolitanism emphasises the equality and unity of the human family, guaranteeing the dignity and humanity of the human family is therefore a common interest of humanity rather than a parochial endeavour. Accountability for international crimes is one way through which human dignity can be validated and reaffirmed where such dignity has been grossly and systematically assaulted. Therefore, while accountability for international crimes is primarily the obligation of individual sovereign states, this responsibility is ultimately residually one of humanity as a whole, exercisable through collective action. As such, the thesis advances the argument that states as collective representations of humanity have a responsibility to assist in ensuring accountability for international crimes where an individual state is either genuinely unable or unwilling by itself to do so. The thesis therefore addresses the question as to whether RIGOs, as collective representations of states and their peoples, can establish international criminal accountability mechanisms. Relying on cosmopolitanism as a theoretical underpinning, the thesis examines the exercise of what can be considered as elements of sovereign authority by RIGOs in pursuit of the cosmopolitan objective of accountability for international crimes. In so doing, the thesis interrogates whether there is a basis in international law for such engagement, and examines how such engagement can practically be undertaken, using two case studies of the European Union and the Kosovo Specialist Chambers and Specialist Prosecutor’s Office, and the African Union and the (proposed) Hybrid Court for South Sudan. The thesis concludes that general international law does not preclude RIGOs from exercising elements of sovereign authority necessary for the establishment of international criminal accountability mechanisms, and that specific legal authority to engage in this regard can then be determined by reference to the doctrine of attributed/conferred powers and the doctrine of implied powers in interpreting the legal instruments of RIGOs. Based on this conclusion, the thesis makes a normative case for an active role for RIGOs in the establishment of international criminal accountability mechanisms, and provides a practical step-by-step guide on possible legal approaches for the establishment of such mechanisms by RIGOs, as well as guidance on possible design models for these mechanisms. [less ▲]

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