Crimes Trials Research Articles

Cause Lawyering in Chile

This paper provides a history of the unique contribution made by Chilean lawyers to processes of political and social change during the past four decades. Chile is widely recognised as one of the classic cases of democratic transition after authoritarian rule: its experience was a forerunner for truth, justice, reparations and amnesty decisions in later transitions including the South African one. But the specific influence of members of the legal profession on Chilean transitional mechanisms has been understudied. The paper demonstrates that Chilean lawyers were pivotal in steering legal and political responses to the dictatorship, and they have played a key role in post-authoritarian transitional justice processes and in recent reform and rights debates. Chile’s long republican tradition since formal independence from Spain in 1810 includes a strong commitment to the notion of law, which helps explain why lawyers and legal framings were symbolically and practically important during and after authoritarian rule (1973-1990). Chile’s gradual and cautious approach to dismantling the legacies of dictatorship has relied heavily on law and legal arguments for both progressive and conservative purposes. As a case study, it can serve as a useful illustration of both the immediate benefits and the mid- to long-term drawbacks of a risk-averse transition that takes authoritarian legality as its starting point and avoids radical early innovation. The paper highlights how law was used in key periods since 1973, and assesses the prospects for democratic understandings of the rule of law to win out over authoritarian ones in the immediate future. Part one explains why law and legal culture are so important in this strongly legalistic society. The next three sections correlate with three main phases in Chile’s recent political history; a chronology of key events is provided at the end. Part two describes legal challenges created by 17 years of military dictatorship and the systematic human rights violations carried out by the Pinochet regime. Part three assesses the advantages and drawbacks of a strictly controlled transition that valued stability more highly than radical reform in building a new democracy. It also analyses how a domestic stalemate over questions related to dealing with the past was challenged by the 1998 Pinochet case, leading to renegotiation of Chile’s truth and justice balance. Part four assesses Chile’s transitional justice challenges nearly two and a half decades after the transition began. Criminal trials for past crimes have been reactivated, and there are moves to replace the country’s undemocratic constitution and modify its self-amnesty law. Longstanding promises to improve forward looking rights guarantees on a range of issues have started to be kept, now that part of the political right has softened its opposition to human rights language and ideas. A new generation of ‘cause lawyers’ or human rights lawyers seems to be emerging, though still in the minority in what remains a largely conservative legal profession.

Mexican Government on trial for crimes against humanity

Mexican Government on trial for crimes against humanity

‘Justice for victims’ in trials of mass crimes

Providing ‘justice for victims’ has become a common argument for the establishment of international criminal tribunals. However, the victims’ role in trials of mass atrocities is highly disputed among scholars and practitioners. This article will take a look behind the theoretical understanding of ‘justice’ and present the views of victims, judges, prosecutors and lawyers involved in the proceedings. Based on 30 qualitative interviews that have been conducted at the Khmer Rouge Tribunal in Cambodia, this article attempts to examine what elements of justice an international(ized) criminal trial can and should achieve from the perspective of its participants. An insight into the victims’ and legal professionals’ expectations for justice sheds light on the question to what extent ‘justice for victims’ is a feasible interest of internation(ized) trials or a mere symbolic label to legitimize international courts. Considering the financial and practical constraints of international criminal courts, the article endeavours to identify measures both in and out of the courtroom that balance the interests of all participants.

The Intersection of Victims’ and Offenders’ Sex and Race/Ethnicity on Prosecutorial Decisions for Violent Crimes

The research considers the influence of extralegal factors, particularly interactions among victim/offender relationship, sex, and race/ethnicity, on prosecutors’ decisions to dismiss criminal charges, plea, or proceed to trial for violent crimes. Minority males, particularly black males, were less likely to receive a plea (versus a trial) regardless of the victim's sex or race/ethnicity. Minority males were also less likely to receive a plea if the victim was white. Alternatively, in prosecutorial dismissals, black and Hispanic males were treated no more harshly than were any of the race/ethnicity–sex categories examined. The findings suggest that failure to consider the sex and race/ethnicity of both defendants and victims may result in inaccurate conclusions about how these variables affect prosecutorial decisions.

„Jest wielu Kainów pośród nas”. Polski wymiar sprawiedliwości a Zagłada, 1944–1956

From 1944 to 1960, Poland held at least 32 000 trials for war crimes and collaboration; in particular, those records generated by the investigations of crimes against Jews have been the basis for ground-breaking studies of the Holocaust in Poland for over a decade now. While Poland was a society without a Quisling, these studies have shown that the country was still very much part of a pan-European continuum in which local people took part in ethnic cleansing inspired by the Nazi occupation. The question remains, then, of how effective the postwar judicial process against the collaborators was. This article makes use of the records of over 450 trials of accused collaborators, held between 1946 and 1949 at the district courts of Warsaw and Siedlce, of which about one-third are cases involving crimes against Jews. These trials are used as the starting point for a wider discussion of post-war justice in Poland.

A Little-known Case from the American Civil War: The War Crimes Trial of Major General John H. Gee

Major John Henry Gee was the commandant of the Confederate prison at Salisbury, North Carolina from 1864 until 1865. During his tenure, thousands of Union prisoners of war died of starvation and diseases or were shot when attempting to escape. Shortly after the end of hostilities, Major Gee was arrested, charged with two counts of violations of the laws of war and brought before a military commission to be tried. The trial of Major Gee is one of the first recorded trials for war crimes and a rare early example of domestic prosecution of an enemy fellow-national for what was effectively an international crime, in a war in which his side had been vanquished. Unlike the war crimes trial of Henry Wirz, commandant of Andersonville prison during the American Civil War, little attention has been paid to this important precedent.

Beyond the Courts? The Complex Relationship of Trials and Amnesties

Since its inception, the central dilemmas of transitional justice have often been framed in stark dichotomies, encapsulated most notably in the phrase: ‘peace versus justice’. This phrase has been widely used to describe the extent to which elites in states undergoing transitions from mass violence may face political, military, and economic pressures to compromise justice in order to obtain peace. Where amnesty laws have been enacted as part of negotiated peace deals they are often perceived as embodying such compromises as they can serve to shield the signatories of peace agreements and their supporters from criminal prosecutions. Although in a small number of cases, such amnesty or immunity agreements may be granted provisionally, more commonly, they are intended to create a permanent barrier to the pursuit of trials for past crimes, where such trials would arguably risk destabilising the fragile political transition. As a result, amnesty laws to shield offenders from criminal sanctions are commonly viewed as the antithesis of trials. At first blush, this perception of amnesty laws as a once-only political pact to close the door on the past is understandable. However, as this paper will argue, closer inspection reveals that transitional states rarely face a binary choice between amnesty and justice, but rather may undergo a continual process of re-negotiation of the balance between impunity and accountability as the transition evolves. Indeed, during political transitions countries rarely follow a linear path towards justice. Instead, the salience of calls for amnesty or trials often wax and wane depending on the changing political circumstances and the relevance of practical concerns such as the passage of time, the degradation of evidence and the mortality of victims, witnesses and perpetrators. This paper will explore some of these relationships by focusing on how trials and amnesties have been sequenced within transitional states. Drawing upon fieldwork conducted by the author in Argentina, Bosnia-Herzegovina, Uganda, South Africa and Uruguay, together with the experiences of amnesties in Cambodia, Sierra Leone and Timor-Leste, the paper will detail how trials have been launched in the shadow of pre-existing amnesties, and conversely, how demands for amnesty may continue or reignite following prosecutions by national or international courts. In this way, the paper seeks to highlight that neither trials nor amnesty laws definitively close the door on the past and instead many societies continue to revisit and adapt their processes in response to changing political contexts. In some contexts, this may result in highly complex sequencing arrangements. By exploring these complexities, this paper will highlight two key findings: firstly, that even where trials are pursued, demands for amnesty or immunity may continue to be made. Although in some cases, these demands may seek to undermine transitional justice agendas, in other instances, they could seek to respond to the problems faced by over-burdened criminal justice institutions by incentivising offender testimony or encouraging offender participation in alternative accountability mechanisms. The second finding is that the more egregious forms of amnesty that offer unconditional impunity for serious human rights violations may not be fully sustainable in the longer-term, and may instead face judicial challenges to narrow their scope or invalidate them entirely. The implications of these two findings point towards the development of more nuanced approaches to amnesty laws that incorporate elements of accountability and may even coexist with some form of criminal prosecutions. The final section of this paper will explore how such coexistence can be written into the text of the amnesty laws.

Questioning the Nazis: languages and effectiveness in British war crime investigations and trials in Germany, 194548

At the end of the Second World War in Europe, the urge to dispense justice and to punish war crimes was one of the most important issues in the dissolution of the conflict. Investigators, interrogators and interpreters had a crucial function in communicating the conflict in the denazification process. The questioning of enemies in the effort to dispense justice problematizes the meanings of the conflict itself and shapes the identities of those involved. Investigations and the consequent trials are also encounters with the enemy and between speakers of different languages, as well as a moment of collision between different national and cultural identities. Identity and language (including interpreting and translating) are crucial for military effectiveness involved in this process. The account of how the need for military effectiveness shaped the structure of the War Crimes Investigation Unit, of the whole process of judgement and punishment of enemies, and especially the identities of those involved in relation to the social space in which they operated, is the purpose of this article. It also contributes to the early history of court interpreting, by providing an account of how the new profession of court interpreter is born, and how it is related, again, to justice and to the needs of occupation and efficiency.

MENCARI FORMAT IDEAL KEADILAN PUTUSAN DALAM PERADILAN

The research is focused on the implementation of vage normen as a discretion law source done by children police penyidik and on the kind of crimes done by children that can be discrete. The method used is the normative legal research through literature that is a research for secondary data as law material. The result proves that the police discreet taken from vage normen is not implemented yet as there is no clear rules about it. the kind of children crimes that may be discreet are clash, stealing, money game, vandalism, dangerous burning for others’ property, stealing, smuggling, crime trial, passing on stolen’s goods, destruction, public means destruction, destroying things, rascals, breaking traffic regulation, dangerous fireworks, being truant, running away from home, psychotropic involve, traffic accident’s suspect, hanging out over midnight, breaking personal rules and smoking. Key words : Vage normen, discretion, investigation, non juridic, well-being of the juvenile

The Prosecutorial Interpretation of the Complementarity Principle: Does It Really Contribute to Ending Impunity on the National Level?

AbstractThe complementarity regime serves as a system to encourage and facilitate the compliance of states with their responsibility to investigate and prosecute international core crimes. It can contribute to the creation of an effective indirect enforcement mechanism among state parties to the Rome Statute; however, the current practice of the ICC falls short of materializing that. In the Ugandan case, the Ugandan referral displays a number of negative aspects regarding the ICC prosecutorial policy in practice. Firstly, Uganda does not seem to fulfil the "inability" criterion as stipulated in Article 17. Secondly, the policy of encouraging and seeking state referrals might lead to certain negative outcomes vis-à-vis fulfilling the purposes of the Rome Statute to end impunity. The presumption that state referrals could guarantee state cooperation is over simplistic. The ICC's position in the DRC situation raises other concerns, particularly with regard to the ICC's approach to cases of "inaction". Lubanga and Germain Katanga were already in the Congolese custody waiting trial for more serious crimes when the ICC requested their surrender considering that the DRC was not investigating the crimes the ICC has been investigating. The Congolese judicial system, at least in certain areas of the DRC (including Kinshasa) was "able and willing". Based on the above, the article concludes that the ICC Prosecutor's policy on the admissibility of "inactions" could encourage in theory national systems to prosecute core crimes; however, in reality it could lead to the opposite.

The “Preventive Detention” of Serious Sex Offenders: Further Consideration of the International Human Rights Dimensions

Several State jurisdictions in Australia have implemented legislation that detains a sex offender in prison after the conclusion of their prison sentence on the basis of a prediction of risk and with no further requirement of a fresh crime or criminal trial. A constitutional challenge to this legislation failed (see (2004) 11(2) PP L 244–253). This article sets out arguments that have been advanced by Ken Tillman in a communication to the United Nations Human Rights Committee that the New South Wales legislation inflicts arbitrary detention and double punishment contrary to Articles 9 and 14 of the International Covenant on Civil and Political Rights.

Organised Crime, Anonymous Witnesses and Fair Trials in Ireland: Responding to R v Davis

This article assesses the absence of witness anonymity in Ireland, and explores the likelihood of its future adoption, using the recent decision of the House of Lords in R v Davis and the Criminal Evidence (Witness Anonymity) Act 2008 as a catalyst for this discussion. It examines the potential threat posed by anonymous evidence to the constitutional right to a fair trial in Ireland, and it analyses current incursions on the right to cross-examine witnesses, which have received judicial imprimatur.However, despite the lack of anonymous witness in the courts and in political and legal debate, three developments suggest that Irish policy makers may not remain averse to such a tactic: the erosion of the right to cross-examination in emergency legislation; the use of anonymous witnesses in civil proceedings; and the desire to incorporate third party interests and rights in criminal justice matters.This article concludes by considering ostensibly less problematic means of protecting intimidated witnesses and their evidence, as alternatives to anonymous evidence.

Psychosocial Variables in the Determination of the Verdict Object in Trials for Environmental Crimes in Spain

Every year, 45,000 forest fires occur in Europe, destroying a forested surface area equivalent to the size of Belgium. Nearly 60% of the forest fires have been ascribed to arson, and for this reason the so-called environmental crime has been included in the legal codes of the members of the European Union. For instance, in Spain forest fires are objects of prosecution in a court of law. This study analyzes the following variables: conservatism, dogmatism, locus of control, attitude toward the legal system, factors from the short Neuroticism Extraversion Openness Inventory (responsibility, openness, extraversion, and kindness), specific variables in the particular cases proposed (forest fires), and attitude toward the protection and improvement of the environment. The specific variables used in each case may help in better delineating verdict trends.

Heuristics, Hypocrisy, and History without Lessons: Nuremberg, War Crimes, and “Shock and Awe”

On the occasion of the sixtieth anniversary of the Nuremberg Trials for Nazi war crimes, this essay explores the present-day significance of the tribunal in light of the current geopolitical situation and the policies of the Bush administration. The discussion highlights the historical, political, and moral dimensions of the ongoing controversies about “the war on terrorism” and American foreign policy since the occupation of Iraq. Just as was the case at Nuremberg, a key theme at issue in today's debates is the hypocrisies of nations, especially their questionable moral legitimacy to impose equitable judgment on a defeated nation. My aspiration is to draw attention to the complexities involved in attempts to achieve international justice and to call for an engaged, moral response to those chauvinistic blinders that preclude fairness.

IMPUNITY RESURGENT: THE POLITICS OF MILITARY ACCOUNTABILITY IN INDONESIA, 1998–2001

IMPUNITY RESURGENT: THE POLITICS OF MILITARY ACCOUNTABILITY IN INDONESIA, 1998–2001

X-Indian Chronicles: The Book of Mausape (review)

Reviewed by: M. X-Indian Chronicles: The Book of Mausape Karen Coats Yeahpau, Thomas M. X-Indian Chronicles: The Book of Mausape. Candlewick, 2006231p ISBN 0-7636-2706-2$16.99 R* Gr. 10 up Mausape and his friends Brando, Hoss, and Maddog are X-Indians, a term Yeahpau coined to describe his experience of growing up as a member of "a race that was losing its culture and a generation that was losing its mind." In a series of interconnected short stories, Yeahpau traces the growth of these boys, from the loss of Mausape's grandfather to an encounter with the vicious Deer Lady, through their multileveled entanglements with tribal spirits and distilled ones, to their various ends—some successful, some violent, some mystical. The stories are compelling and disturbing, laced with the irony of living between two worlds, an experience [End Page 313] that Yeahpau captures with laconic intensity. Yeahpau's X-Indians have come to a point where their only language for the beauty and violence of the spirit world has been overwritten by the coarse banality of street slang; for instance, when Mausape's guardian angel is so overcome with desire for him that she falls to earth and assumes a sublimely perfect human form, his response is "She was Great-Spirit given, and Mausape knew he better hit that." Yeahpau is a master storyteller for his generation, showing with uncompromising force and edgy humor the fraught intersections between Kiowa tradition and a hard-driving adolescence and early adulthood steeped in a haze of anger, poverty, crime, sex, drugs, and alcohol. Even a hokey premise like putting Mr. Al Cohol on trial for crimes against the Indians and the X-Indians yields a gasp of insight when Cohol testifies to a grisly parody of the well-known Christian poem of solace, "Footprints." Tough and provocative yet laced with wicked humor, this is an honorable successor to Sherman Alexie's The Lone Ranger and Tonto Fistfight in Heaven in both candor and grace. Copyright © 2007 The Board of Trustees of the University of Illinois

An Instance of Reasonable Universality

The Audiencia Nacional`s (AN) decision in Scilingo is not well argued in all its implications and, on some points, the Court engages in legal acrobatics; the decision therefore lends itself to criticism. Nevertheless, the AN was right in exercising its jurisdiction over Scilingo`s extraterritorial crimes, both from the viewpoint of international law (on the basis of so-called conditional universality) and of domestic law (on the strength of Spanish rules of procedural and substantive criminal law). Furthermore, although crimes against humanity were provided for in the Spanish criminal code only in 2003, Scilingo`s trial and conviction for crimes against humanity is not at odds with the principle of legality (nullum crimen sine lege). Indeed, at the time of commission of his alleged crimes, rules of customary international law prohibiting such crimes already existed in international law and the corresponding domestic provisions were in force in the Spanish legal order. These rules and provisions became directly applicable as soon as Spanish law provided for a penalty attaching to such crimes.

THE ADMINISTRATIVE DETENTION OF NON-NATIONALS PURSUANT TO IMMIGRATION CONTROL: INTERNATIONAL AND CONSTITUTIONAL LAW PERSPECTIVES

Fortunately it is still startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial. Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land, (per Jackson J, Shaughnessy v United States ex rel Mezei 345 US 206 (1953))

War Crimes and Collective Wrongdoing: A Reader

List of Contributors. Preface. Acknowledgments. Introduction: Anthony Ellis (Virginia Commonwealth University). Part I: What are War Crimes?:. 1. Unchosen Evil and Moral Responsibility: Peter French (University of South Florida). 2. War Crimes and Human Rights: Alan Gewirth (University of Chicago). 3. War Crimes: Moral, Legal or Simply Political?: Jovan Babic (University of Belgrade). Afterword. Further Reading. Part II: Trials for War Crimes:. 4. War Crimes and Virtue Ethics: Michael Slote (University of Maryland, College Park). 5. Whose Trials? Whose Reconciliation?: Burleigh Wilkins (University of California, Santa Barbara). 6. What Should We Do With War Criminals?: Anthony Ellis (Virginia Commonwealth University). 7. Accountability and the Legacy of Nuremberg: Richard Falk (Princeton University). Afterword. Further Reading. Part III: Nationalism and Collective Wrongdoing:. 8. Secession and Self--Determination A Legal, Moral, and Political Analysis: Alfred Rubin (Tufts University). Afterword. Further Reading. Part IV: The Aftermath of Collective Wrongdoing:. 9. Collective Responsibility, a Moral Luck,a and Reconciliation: David Cooper (University of Durham). 10. Collective Remorse: Margaret Gilbert (University of Connecticut, Storrs). 11. Reparations to Native Americans?: Angelo Corlett (San Diego State University). 12. Transitional Justice and International Civil Society: David Crocker (University of Maryland). Afterword. Further Reading. Index.

Alphonse de Chateaubriant and the Politics of French Literary History

Over the past two decades, two phenomena have combined in Europe and the United States to revise the study oftwentieth-century French literature and to cloud a once-clear and widely accepted representation of French literary history from the inter-war years to the present. The most widespread of these phenomena, whose impact has been felt not only in the study of French literature and culture in the broadest sense, but in political and legal scandals and controversies as well, is of course France's obsession with its Vichy past. So pervasive and tenacious has been this obsession that in 1987 the historian Henry Rousso diagnosed it as a 'syndrome' a label that has stuck with it ever since. To get a sense of the impact of the Vichy Syndrome, one need only consider the attention given the trials for crimes against humanity of Klaus Barbie, Paul Touvier, and Maurice Papon, or the scandal surrounding revelations of the extent and duration of then President Fran<;ois Mitterrand's service to Vichy following the publication of Pierre Pean's UneJeunesse fram;aise: Fram;ois Mitterrand 1934-1947 in 1995. To gage the impact of Rousso's Syndrome on cultural studies or 'les sciences humaines', one need only consider the fact that more historical studies produced in France in the 1990s dealing with the nation's long past have dealt with Vichy (and its legacy) than with any other period. Along the same lines, studies ofliterary collaboration with the Nazis have multiplied, as have at least in some quarters efforts to rehabilitate right-wing writers whose reputations suffered as a result of their pro-Nazi or pro-Vichy stances. Atthe same time, interest in extreme right-wing and fascist intellectuals has intensified, certainly in the United States, as a result of the de Man and Heidegger Affairs of the late eighties. The complicity of both men with Nazism not only marked the retreat of deconstructive formalism, it brought a new focus to fascist intellectuals and artists and placed a much higher premium on the analysis of historical and ideological context in the discussion of virtually all writers and their works. Largely as a result of the convergence of these two trends, on both sides of the Atlantic the works ofjascisant, pro-Vichy, and anti-Semitic French writers such as Robert Brasillach, Pierre Drieu la Rochelle, LouisFerdinand Celine especially in his role as pro-Nazi and anti-Semitic pamphleteer and most recently, Paul Morand, have achieved greater visibility and notoriety while raising