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Law Multidisciplinary

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Browsing Law Multidisciplinary by Author "Carnelley, Marita."

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    The combatant status of non-State actors in international armed conflicts, in light of the notion of direct participation in hostilities : an analysis of relief workers, journalists, voluntary human shields, private-military and security contractors, and under-aged child soldiers recruited into non-State organized armed groups.
    (2012) Bosch, Shannon Joy.; Carnelley, Marita.; Cowling, Michael G.
    The increased outsourcing of many traditionally military functions, together with the fact that international armed conflicts are increasingly being fought in predominantly civilian locations, is contesting the international humanitarian law (IHL) presumption that civilians are necessarily non-participatory spectators in the theatre of war. The legal lacunae which surrounds non-State actors like: private military and security contractors (PMSCs), under-aged child soldiers, voluntary human shields (VHSs), relief workers and journalists, is complicating the legal assessment of their primary IHL status, obscuring crucial determinations around whether their actions amount to direct participation in hostilities, and confounding certainty around the legal regime applicable to them upon capture. Through critical analysis of customary and treaty based IHL, this project explores the primary IHL status of each of these types of non-State actors. Thereafter it seeks, through practical application of the ICRC’s Interpretive Guide on the Notion of Direct Participation in Hostilities, to draw specific conclusions on the range of activities that might compromise their civilian immunity against direct targeting. In the final analysis the study concludes that engaging in combat functions, operating weapons systems, participating in direct support functions, conducting training for predetermined hostile acts, sabotaging military capacity, guarding captured military personnel, gathering intelligence for use in marking targets, divulging tactical information or acting as a lookout will amount to direct participation in hostilities. Through similar investigation, the study concludes that mere interference, defensive guarding or shielding of civilian or other dual-use sites, and the defense of military installations against criminal elements, fails to rise to the threshold required to compromise a civilian non-State actor’s immunity against attack. While dispelling the misconception that civilian status itself can be legally forfeited, the project explores the practical legal consequences of civilian direct participation in hostilities: including legitimate direct targeting of these non- State actors for so long as their participation or membership of the combative group persist, and their criminal prosecution upon capture.
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    A critical analysis of the implementation of the Maintenance Act 99 of 1998 : difficulties experienced by the unrepresented public in the Maintenance Court as a result of the poor implementation of the Act.
    (2014) Coutts, Tamazin L.; Carnelley, Marita.
    Maintenance law in South Africa is based on the existence of the common law concept of the duty of support between dependant parties. As a result of this duty of support, parents are obliged to support their children whilst they are unable to support themselves. This is a right of all children. There has been a constant evolution of the scope of the common law concept of duty of support through both case law, and legislation, culminating in the Maintenance Act 99 of 1998. However, due to structural and procedural issues tied to the implementation of the Act, children's rights often go unprotected, particularly in cases where members of the public enter and engage in the maintenance system unrepresented. This dissertation aims to identify and address many of the problems encountered by maintenance court users on a daily basis. Specific reference is made to the experiences of the unrepresented public in the Eastern Cape Province, where research was conducted. The study begins with a historical overview of origins of maintenance law. This is followed by an overview of Act 23 of 1963 and the innovations which it brought about. Next, Act 99 of 1998 is reviewed, accompanied by an explanation of innovations and amendments, and criticisms. The research results are discussed on a comparative basis with already documented studies on the maintenance system as identified through an analysis of available literature on the subject. Further criticisms are identified through quantitative research, undertaken in the form of a survey conducted amongst Maintenance court users within 7 magistrate’s courts in the Eastern Cape Province. This dissertation continues to document suggested solutions to the problems highlighted, including corrections to the 1998 Act itself, as well as solutions and recommendations related to its implementation. The conclusion of this study is that one of the primary means of overcoming the short falls in the maintenance system is education of court users in their rights and responsibilities, as well as procedures to follow, with regards to the Maintenance Court.
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    The protection of the rights of children affected by HIV/AIDS in South Africa and Botswana :  a critical analysis of the legal and policy responses.
    (2013) Sarumi, Rofiah Ololade.; Strode, Ann Elaine.; Carnelley, Marita.
    Abstract not available.