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Court trials

Court trials. PSCI 335. Court trials. An important transitional justice method. For some victims, it is the only method capable to deliver justice. Rather few in number – few perpetrators were brought to justice, and even fewer were found guilty.

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Court trials

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  1. Court trials PSCI 335

  2. Court trials • An important transitional justice method. • For some victims, it is the only method capable to deliver justice. • Rather few in number – few perpetrators were brought to justice, and even fewer were found guilty. • Receive a lot of public attention regardless of their outcome.

  3. Explaining the scarcity of trials (1) • Court trials are relatively few because of: • High standard of justice – guilty beyond reasonable doubt (balance of probabilities for truth commissions, if not just the mention of the perpetrator’s name by one former victim) • Lack of evidence, since dictatorships destroy it or that evidence never existed (for “the brain”) • Old age and poor health of former perpetrators • Fear that trials will maintain conflict and division

  4. Explaining the scarcity of trials (2) • Resistant members of the judiciary (civil and military courts) tainted by collaboration with former regime • Courts overwhelmed with cases, after civil war, periods of conflict, mass human rights violations (Rwanda) • Legal impediments – burden of proof, amnesties and statutes of limitations

  5. Legal impediments • Burden of proof • No ex post facto law • Nullumcrimen, nullapoena sine lege • Amnesty • Statute of limitations

  6. Burden of proof • The one that makes the charge (the state) must prove guilt; the accused must not prove his/her innocence (semper necessitas probandi incumbit ei qui agit) – the accused is presumed innocent • Refers to: • beyond a reasonable doubt • clear and convincing evidence • preponderance of the evidence

  7. Ex post facto law (1) • Prohibition on ex post facto laws that place the defendant at a disadvantage – current legal ideas cannot be used to examine past cases (no retroactive law) • The Berlin Wall Trial where post-1989 democratic principles (right to movement and prohibition on state actors to prevent movement) were imposed on shootings that occurred before 1989

  8. Ex post facto law (2) • As a way to avoid ex post facto situations, courts will try to convict perpetrators for crimes recognized by the dictatorial law • Berlin Wall Trial where defendants were judged according to the communist law – they applied too much force compared to what the law allowed (see chapter on Germany)

  9. Nullum crimen, nulla poena sine lege • No crime, no punishment without a previous penal law – no punishment without a crime being recognized as such by penal law at the time when committed • Only crimes recognized by the penal law can be prosecuted • Punishment must be the one prescribed by the law, not more severe

  10. Amnesty (1) • Amnesties imply protection from prosecution (and legal punishment) • They are equated with impunity, as perpetrators are not held accountable for their crimes • Seen as beneficial by ending conflict and giving perpetrators a stake in the new democracy

  11. Amnesty (2) • Can be grated by authorities to former perpetrators OR can be self-granted • Take the form of amnesty laws (adopted by the legislative) or decrees (issued by the president or cabinet) • Amnesties also include pardons (by which a state restores those who may have been guilty of an offense to the positions of innocent people, without changing the laws defining the offense)

  12. Statutes of limitations (1) • The maximum time after an event that legal proceedings based on that event may be initiated • Once the time allowed for a case by a statute of limitations runs out, any further litigation is foreclosed • The more serious the crime, the longer the maximum time (assault – 3 years, torture – 8 years)

  13. Statutes of limitations (2) • Exceptions : • For serious crimes (genocide, war crimes, and crimes against humanity) which are imprescriptible – • Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity does not allow limitations claims for these crimes. • Article 29 of the Rome Statute of the International Criminal Court states that genocide, crimes against humanity, and war crimes "shall not be subject to any statute of limitations".

  14. Statutes of limitations (3) • Exceptions: • When the courts could not hear the case because the dictatorship prevented them to do so – the running of limitations is tolled (delayed), and the period starts from the moment of the regime change (1989 in Eastern Europe, 1976 in Argentina, etc.)

  15. Nurenberg Trials • Considered the first court trials relevant for transitional justice • Organized 1945-6 by Allies to prosecute top Nazi officials for crimes against peace, war crimes, crimes against humanity • Praised for setting new international legal standards • Criticized as victor’s justice

  16. The NT Legacy • The Genocide Convention, 1948. • The Universal Declaration of Human Rights, 1948. • The Nuremberg Principles, 1950. • The Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity, 1968. • The Geneva Convention on the Laws and Customs of War, 1949.

  17. Courts and tribunals • International tribunals (ICC, ICTR and ICTY) • Hybrid courts • Regular domestic courts • Local courts (Gacaca courts)

  18. International Criminal Court • Created in 2002 by the Rome Statute as permanent court prosecuting individuals for genocide, war crimes, and crimes against humanity. • Sits in The Hague. Russia, China, India, the US, Israel, and Sudan are not party states • Can exercise jurisdiction if 1) the accused is a national of a state party, 2) the crime took place on the territory of a state party, or 3) a situation is referred to ICC by the UN Security Council • To date investigated 7 “situations” in Africa

  19. ICTR and ICTY • Ad hoc international tribunals set up by the UN Security Council in 1994 (ICTR) and 1993 (ICTY) • Have jurisdiction over serious human rights violations (genocide, war crimes, and crimes against humanity) that took place in Rwanda and former Yugoslavia during the 1990s conflicts • Expected to end their work by 2014

  20. Hybrid courts • Combine international and national features • Special Tribunal for Lebanon, Special Tribunal for Sierra Leone • Prosecute under the law of the country for which they were set up • Jurisdiction over specific crimes (serious, taken place in those countries during specific periods of time) • Located in the Netherlands (STL) and Freetown (STSL)

  21. Regular courts • Used in many transitional justice to prosecute perpetrators of past crimes • Staffed by judges and prosecutors who might have started their careers under dictatorship • Apply national law (into which international legal instruments might have been transposed)

  22. Gacaca courts • Courts at the grass roots level • Located in Rwandan villages • Organized under the jurisdiction of the Rwandan state • Hear lesser crimes (not murder) • Complement the activity of the regular courts

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