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4622 results in Criminal Law

Page 114 of 232

  • Dealing with Organisations and Corporations

  • from PART II - RETRIBUTIVE JUSTICE
    • By Cedric Ryngaert, Professor of Public International Law and program leader of the Master Public International Law, Utrecht University, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 187-202

  • Summary

    INTRODUCTION

    While it may be common knowledge that historical injustices are perpetrated by repressive governments, accepting this would require one to overlook the role that private organisations and corporations may play in those injustices. Although it is true that governments normally are the principal perpetrators of historical injustices, it is no less true that governments are in need of practical support to carry out their plans, support that is often provided by willing organisations and corporations (e.g., financing, supply of chemicals and weapons, building of infrastructure, exploitation of natural resources, etc.). These organised private actors do not commit historical injustices entirely on their own, but tend to conspire with, or assist, governments in committing the wrongs. The question then arises as to what acts can precisely engage these actors’ legal responsibility (liability), and how can they be held accountable.

    The role of private organisations and corporations in committing, or contributing to, historical wrongs has not been widely documented, since accountability for historical injustices has so far mainly, and even almost exclusively, focused on states and individual actors as principal perpetrators. The corporate social responsibility movement has admittedly drawn more attention to the role of corporations recently, but the step from mere allegations and moral repudiation to legal liability, which forms the basis for remedies in courts, has not fully been made. Often, evidence regarding the exact participation of the corporation in the governmental criminal enterprise is lacking. But more fundamentally, liability and complicity standards currently appear to be too undetermined to buttress a viable case in court. Does it suffice for the private entity to have simple knowledge of the crimes (about to be) committed by the government which they assist for that entity to be held liable, or is intent on the part of the entity required (in the sense of the entity specifically intending the criminal consequences to take place)?

    This chapter aims to discuss he corporate complicity standards that civil and criminal courts have grappled with since World War II. The contribution will mainly analyse relevant court cases arising under the US Alien Tort Claims Act (ATCA) – which allows claims against corporations for violations of ‘the law of nations’ – and cases brought against Nazi industrialists before Allied war crimes tribunals in post-war Germany.

Facing the Past
  • Amending Historical Injustices Through Instruments of Transitional Justice
  • Edited by Peter Malcontent
  • Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016
  • How do societies at the national and international level try to overcome historical injustices? What remedies did they develop to do justice to victims of large scale atrocities? And even more important: what have we learned from the implementation of these so-called instruments of transitional justice in practice? Lawyers, socials scientists and historians have published shelves full of books and articles on how to confront the past through international criminal tribunals, truth commissions, financial compensation schemes and other instruments of retributive/punitive and restorative justice. A serious problem continues to be that broad interdisciplinary accounts that include both categories of measures are still hardly available. With this volume a group of international experts in the field endeavors to fill this gap, and even more. By alternating historical overviews with critical assessments this volume does not only offer an extensive introduction to the world of transitional justice, but also food for thought concerning the effectiveness of the remedies it offers to face the past successfully. 'This synthetic volume is a comprehensive introduction to the various facets of the field of historical injustice of which transnational justice is its best known manifestation. This practical and thoughtful publication addresses critical aspects that challenge the goal of redressing the past as these are presented in scholarship, advocacy and policy. The book delves into questions from justice to ethics and to education and would be useful for students as well as policy makers.' Elazar Barkan, Columbia University'This is a superb reference work on Transitional Justice, covering nearly all of the general questions regarding the various mechanisms in its toolbox, and the combinations thereof, and including case studies and pending cases. It provides expert analyses of transitional justice in post-conflict, post-authoritarian, and democratic states, presenting problems and solutions. The subjects broadly range from apologies to corporate complicity, to America's self-proclaimed exceptionalism when it comes to confronting onerous chapters of its past. In recent years, a number of problematic cases have emerged that will require us to re-think the transitional justice toolbox - this volume offers a solid basis from which to depart'Nanci Adler, University of Amsterdam.

  • Governing through Repair. Historical Injustices and Indigenous Peoples in Canada

  • from PART III - RESTORATIVE JUSTICE
    • By Andrew Woolford, Professor and Criminology and Social Justice Research Coordinator, Department of Sociology, University of Manitoba, Winnipeg, Canada.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 303-320

  • Summary

    INTRODUCTION

    Facing the past in the context of settler colonialism presents a difficult challenge. Lacking a moment of rupture, such as the downfall of an authoritarian regime or the end of widespread violence, ‘transitional’ justice in settler societies is without a temporal focal point. There is no clear break with the past, which could potentially ignite new patterns of thought and action. Thus, historical justice in settler societies is hampered in its efforts to effect significant transformation because these societies are still embedded in colonial relations of rule.

    This is the case in Canada, where a long history of trying to ‘deal’ with the ‘Indian problem’ has seen many promises of justice devolve into renewed attempts at assimilation.2 Rather than guide Canadian society toward an accommodation with indigenous peoples’ desire to fashion contemporary communities out of distinct cultural milieux, transitional justice in Canada often seeks to better fit these peoples into the Canadian mosaic. In this chapter, multiple forms of Canadian transitional repair are assessed: land claims negotiations, self governance provisions, compensation, and the Truth and Reconciliation Commission for former residential school students. In all cases, the constitutive dimension of the repair process is highlighted; that is, emphasis is placed on the ways in which repair is deployed to better manage and incorporate indigenous peoples within a settler national framework. This will be referred to as ‘governing through repair’, adapting Jonathan Simon's notion of ‘governing through crime’ to illustrate the ways in which repair processes contribute to a broader project of governance.3 In addition, I will argue that Canadian repair processes are in danger of replicating rather than transitioning from the historical injustices of assimilative policy-making, paternalistic disregard, and liberal governance that have long defined indigenous and non-indigenous relations in Canada.

    GOVERNING THROUGH REPAIR

    Governance, in Foucauldian terms, refers to more than just the attempt to direct the behaviour of a population; it notes the often more subtle strategies, discourses, and techniques through which individual and group conduct is shaped and regulated. Jonathan Simon's concept of governing through crime, for example, registers how contemporary governments use crime and the fear of crime to legitimate their authority.

  • The United States and Torture. The Politics of Transitional Ju

  • from PART IV - PENDING CASES
    • By David P. Forsythe, Emeritus University Professor and Charles J. Mach Distinguished Professor, Department of Political Science, University of Nebraska, Lincoln, USA.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 361-386

  • Summary

    INTRODUCTION

    Transitional justice (TJ) was designed for small and weak states emerging from authoritarian brutalities or armed conflicts, but it posed challenges for the United States even after the two terms of the Barack Obama Administration. In the aftermath of widespread mistreatment of enemy prisoners by the George W. Bush Administration, the Obama policy team tried to both change some policies and mostly push the issue of past accountability under the political rug. Bush's policies had led to torture, in some cases fatal torture, as well as inhumane treatment. Often there were also confused and shifting authorisations plus mostly lack of responsible oversight. This latter condition allowed detention and interrogation to spin out of control at places like the Abu Ghraib prison in Iraq after the US invasion of 2003. Bush's policies of prisoner abuse may not have been as broad and severe as elsewhere, e.g., under the Argentine junta in the late 1970s, but they were committed by the world's most powerful democracy and self-styled leader for human rights. The present analysis explains the factors at work that once again led the United States to preach human rights accountability for others but to engage in exceptionalism and exemptionalism for itself.

    The option of avoiding TJ measures was a reasonably well known policy option. It was chosen by Spain and Portugal after the end of brutal dictatorships. Both joined the Council of Europe, with its human rights norms and procedures, which served as the antechamber to the European Union with its own human rights norms and procedures. Thus these two countries conducted no special aspects of TJ but rather ‘moved on’ and locked themselves into regional arrangements that presumably guaranteed no back sliding into the degradations of the past. This was not a perfect solution, as Spain in the twenty-first century engaged in a delayed debate about TJ, in particular whether specific measures should be taken to reconsider atrocities in the Spanish civil war, 1936–1939, and the resulting Franco era of fascist rule, 1939–1975.

  • National and Hybrid Tribunals. Benefits and Challenges

  • from PART II - RETRIBUTIVE JUSTICE
    • By Brianne McGonigle Leyh, Assistant Professor, Netherlands Institute of Human Rights (SIM), Utrecht University, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 115-138

  • Summary

    INTRODUCTION

    The origins of modern international criminal law date back to the military tribunals established after World War II. Although the Nuremberg and Tokyo trials have been largely criticised for the fact that they operated without precedent, the trials’ legacies have endured and their jurisprudence aided in the further development of international criminal law norms. To be sure, the lasting legacy of the Nuremberg and Tokyo trials is the assertion that individuals are subjects of international law and can be held criminally responsible for perpetrating war crimes and crimes against humanity. However, following the conclusion of the trials, there is a large gap in time between the Nuremberg and Tokyo military tribunals of the 1940s and the civilian ad hoc tribunals of the 1990s. The creation of these tribunals, under the auspices of the UN Security Council, was in response to atrocities that took place in the Balkans and Rwanda respectively. Their emergence ushered in a new era in international law and international criminal justice, whereby once again the international community has sought to hold individuals accountable for the violation of international crimes.

    The trials at the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) have not only held individuals accountable for international crimes, which arguably has helped to decrease tensions between opposing groups by steering clear of collective blaming, but have helped to build an historical record, thereby combating denialism and promoting truth. Furthermore, the jurisprudence from the international tribunals has helped to shape the future interpretation of violations of international criminal law. Some commentators argue that by virtue of their externality, international tribunals provide for an objective distance between those judging and those being judged, which allows for a normative message to be expressed.

    Following the establishment of the ICTY and ICTR in July of 1998 states drafted the Rome Statute, establishing the International Criminal Court (ICC). The Statute entered into force on 1 July 2002 and today one hundred and twenty three countries have ratified the treaty. The ICC, which prosecutes individuals alleged to have committed the most serious crimes of concern to the international community, is the only international criminal court that is permanent and whose jurisdiction is potentially universal.

  • Introduction

  • from PART I - TRANSITIONAL JUSTICE. WHAT'S IN THE NAME?
    • By Peter Malcontent, Assistant Professor, History of International Relations Department and program leader of the Master program International Relations in Historical Perspective, Utrecht University, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 3-26

  • Summary

    AMENDING THE PAST. A NOVEL URGE?

    On 15 July 1999 hundreds of Christians concluded their three year reconciliation walk at the walls of Jerusalem's Old City where they apologised to Muslims, Jews and Orthodox Christians for the Crusaders’ bloody pillage of the city nine hundred years earlier. Although this act of atonement was rather extreme, it did not stand alone but was part of a growing urge, particularly in the West, to amend past injustices and atrocities.

    Already in 1988 United States President Ronald Reagan signed into law a bill that expressed the nation's apology for the internment of Japanese Americans during World War II. The act furthermore provided for financial compensation in the amount of 1.25 billion US dollars, a sum that was both acceptable to the government and satisfactory to the victims. In May 1997, President Clinton offered a formal apology to survivors of a forty-year study by the US Public Health Service that had sought to document the course of syphilis by withholding proven medical treatment from a group of African Americans suffering from this disease. Two weeks later his British colleague Tony Blair issued an apology for his country's role in the Irish Potato Famine in the nineteenth century, which caused the death of one million people. In a letter to the organisers of a weekend festival to commemorate the famine, Blair spoke of a ‘defining event in the history of Ireland and Britain that had left deep scars (…) and that still causes pain as we reflect on it today’.

    In France, President Jacques Chirac had already publicly recognised his country's responsibility for the deportation of thousands of Jews to Nazi death camps during the reign of the collaborationist Vichy regime in World War II. Later in 1998 he even apologised for the false arrest and conviction of the Jewish army captain Alfred Dreyfuss one century earlier. In an open letter to the families of Dreyfuss and Emile Zola, the famous author who himself was brought to trial after publicly accusing the government of conspiracy, President Chirac expressed deep remorse for the unlawful persecution of both men.

  • The Unfulfilled Promise of Protection. The Netherlands and Srebrenica

  • from PART IV - PENDING CASES
    • By Christ Klep, Assistant Professor, History of International Relations Department, Utrecht University and Assistant Professor Military History, University of Amsterdam, the Netherlands.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 323-338

  • Summary

    INTRODUCTION

    The Srebrenica tragedy stands out as one of the blackest pages in post-war human rights history. In July 1995 an estimated nine thousand Muslim men were slaughtered by Bosnian Serb forces. A Dutch United Nations battalion (Dutchbat) had been tasked with shielding the Muslim population of Srebrenica. But the Dutch unit proved unable to stop the Bosnian Serb assault and prevent the subsequent massacre. The tragedy has haunted the UN and the Netherlands since those fateful days of 1995. Critics have consistently underlined the unfulfilled promise of protection by both the UN and the Netherlands. British journalist Robert Fisk, for example, wrote scathingly: ‘Why, one keeps asking oneself, were these Dutchmen in uniform in the first place? Aren't soldiers occasionally expected to fight, even to die?’

    This intensely emotional event offers a meaningful case study regarding the complex problem of finding remedies for grave historical injustices. This chapter will look more closely at the attempts of Srebrenica survivors and their sympathisers (mostly human rights NGOs and lawyers, left-wing politicians and intellectuals) to seek remedies from Dutch authorities and the UN via the Dutch judicial system. So far, this has proven to be a time-consuming and arduous process, laden with recriminations and sensitivities. Two civil lawsuits before the Dutch District Court in The Hague will figure prominently here. The actual claims by the Srebrenica survivors as well as the dispositions of the Dutch authorities and the District Court in The Hague itself provide a telling insight into the problems – legal, practical and political – plaintiffs from Srebrenica have encountered in their search for apologies and compensation. This case study also allows us to analyse more broadly the UN's responsibility when it comes to peace operations that have turned sour and the way the organisation addresses claims from victims. As will become evident, the District Court in The Hague based its arguments time and again on the political reality of an imperfect UN system and on the unsatisfactory instrument of UN peace operations.

    THE EVENTS

    In 1993 the UN Security Council established ‘safe areas’ to protect six hard-pressed Muslim enclaves in Bosnia-Herzegovina that were surrounded by Bosnian Serb troops. Soldiers from the United Nations Protection Force (UNPROFOR) were tasked with safeguarding the local population in all six safe areas.

  • Official Apologies

  • from PART III - RESTORATIVE JUSTICE
    • By Rhoda E. Howard-Hassmann, Canada Research Chair in International Human Rights, Balisillie School of International Affairs, Waterloo, Canada.
  • Edited by Peter Malcontent
  • Book:
    Facing the Past
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    29 July 2016, pp 247-264

  • Summary

    INTRODUCTION

    The Man in the White Sharkskin Suit is an autobiographical story of the expulsion of Arab Jews from Egypt after the 1956 Suez War. After the book was published the author, Lucette Lagnado, received a letter from a retired Egyptian diplomat who wrote: ‘almost no one wants to admit the horrible (…) even criminal way Egyptian Jews have been treated’. As Lagnado commented: ‘I realized that after forty years, my family – and tens of thousands of others – had finally obtained (…) what they had most wanted, other than the ability to return: an apology – an acknowledgment of our pain’.

    According to a United Nations General Assembly resolution, ‘victims of gross violations of international human rights law and serious violations of international humanitarian law’ have the right to a remedy. Remedies include inter alia ‘Public apology, including acknowledgement of the facts and acceptance of responsibility’, ‘Verification of the facts and full and public disclosure of the truth’, and ‘guarantees of non-repetition’; all aspects of a complete and satisfactory apology. Victims are defined as ‘persons who individually or collectively suffered harm’ as well as ‘the immediate family or dependants of the direct victim’. Thus, evolving international law requires apologies to victims and their direct family members for gross violations of their human rights. This resolution, however, does not call for retrospective apologies for events that have no surviving victims or family members or dependants. Nevertheless, since the 1980s official apologies have proliferated.

    I define an official apology as an apology by a corporate entity with standing to represent a group of some kind. The corporate entity is often a state, but could also be a business or a private group such as a religious community. The corporate entity issues the apology in the name of the group it represents, such as the citizenry of a country, the officers and shareholders of a corporation, or the members of a religious community. The individual who delivers the actual apology has standing to do so because she officially represents the corporate entity, regardless of whether the incident or words for which she is apologising occurred during her tenure in office.

  • Chapter 5 - Child Recruitment and Reparatory Justice: Recovery and Reintegration of War-Affected Children

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 135-162

  • Summary

    “When we first came back, the people did not want us. But now it is OK. Now it is good. They like the projects we are doing for the village.”

    INTRODUCTION

    Reparatory justice is an integral part of transitional justice and builds on the obligation of states to make restitution whenever international legal obligations have been violated. The Basic Principles and Guidelines on the Right to a Remedy and Reparation, adopted by the UN General Assembly in 2006, form the basis of what today is considered a framework for reparations – defining that victims of human rights and humanitarian law violations have the right to “adequate, effective, prompt and appropriate remedies, including reparation.”

    In addition:

    Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one's place of residence, restoration of employment and return of property.

    The Basic Principles and Guidelines further state that compensation should consider the circumstances for each case and be provided in proportion to the severity of the violation.

    Reparatory justice includes many dimensions and forms: reparations, services, damages, remedies, redress, restitution, compensation, rehabilitation, official apology, tribute. In transitional contexts, reparatory justice enables recognition of individual rights violations and the harm that followed, and the fact that someone did wrong, in addition to a commitment for non-repetition of the crime. This element looks back at what the violations were, and even if it is not the same actor who repairs, the obligation remains. It also looks forward in a political and transitional sense, repairing so as to be able to move forward.

    Key legal questions that are covered in this chapter include:

  • – What does reparatory justice mean in the context of recruitment and use of children in armed conflicts? How can we ensure that reparations are in the best interests of the child?

  • – What legal protection is accorded to children ensuring that this element of transitional justice is accorded the necessary importance?

  • – What lessons have been learned from reparatory justice processes relevant to the recruitment and use of children, and how can those inform how this element fits into a broader transitional justice approach?

  • – Who repairs?

  • Chapter 3 - Child Recruitment and Criminal Justice: the Lubanga Case

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 69-108

  • Summary

    “I want to take my baby home. I want my parents to help me with him, but am not sure what will happen when I get home.”

    INTRODUCTION

    The criminal justice element of transitional justice is a call to punish leaders of previous regimes and individuals for their wrongdoing. Criminal justice is oft en what people immediately relate to when speaking of transitional justice. Prosecutions aim to ensure that those responsible for committing crimes are tried in accordance with international standards of fair trial and, where appropriate, punished for crimes carried out.

    Key legal questions that are considered in chapter 3 include:

  • – Considering the current state of the art in turning the conscriptions (“forced”) and enlistment (“voluntary”) of children for use to participate actively in hostilities into an international crime, what are some of the implications of the recent Lubanga judgement?

  • – What is the role of criminal justice more broadly in bringing about change in the situation of children who are being conscripted and enlisted?

    • This chapter focuses on international criminal justice because it is the arena where the most detailed developments have taken place with respect to case law. International criminal justice from a post-conflict perspective has its roots in the Nuremberg trials, which brought about a substantial change in considerations of accountability, moving from collective to individual justice and from national to international processes. This was not to prioritize one method over another, but it was a new phenomenon at the time.

    A critical aspect of criminal justice is the concept of the presumption of innocence and a crime having been committed “beyond reasonable doubt.” Criminal justice in any jurisdiction is not just about the rights of the victim, but also about the rights of the alleged perpetrator; hence, this chapter aims to carefully consider the different perspectives and prudently weigh the arguments. This is also why it is so important that criminal law is predictable and specific, and that those who are in place to implement that law are well prepared to do so.

  • Chapter 4 - Child Recruitment and Historical Justice: the Security Council Mechanism on Monitoring and Reporting

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 109-134

  • Summary

    “Could you please write a letter to Mr. Tamil Selvan [head of political wing in the LTTE] to tell him that he had made a mistake. He says all the children have come home, but he has forgotten my child. Please tell him to find my child and send her home.”

    INTRODUCTION

    Historical justice is about establishing the facts of what has occurred in the past in order to promote the most effective application of justice in the present. This element of transitional justice is oft en understood to relate to truth commissions, but it draws on several other activities, including those of the criminal justice processes for establishing the facts, distinct fact-finding exercises, and human rights investigations of diverse kinds.

    Chapter 4 primarily considers the outcome of the Security Council thematic focus on children and armed conflict as a contribution to historical justice. At the time of the establishment of the monitoring and reporting mechanism of the Security Council in resolution 1612 (2005), it was emphasized that the mechanism was established in order “to collect and provide timely, objective, accurate and reliable information on the recruitment and use of child soldiers in violation of applicable international law and on other violations and abuses committed against children affected by armed conflict.” This chapter offers an analysis of the value added by the information gathered through the mechanism and the subsequent conclusions made by the Security Council Working Group (SCWG) on children and armed conflict, as well as action plans developed with armed groups and forces for the release and reintegration of children within the international legal framework for the protection of children during armed conflicts. While the mechanism does much more than gather information, its ultimate purpose is to pave the way for informed action and political transformation in a context of transitional justice.

    While there are many options for how to establish the facts, the way that the facts are established and who is behind the fact finding make a great difference.

Page 114 of 232