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Journal of International Criminal Justice Advance Access





Published: Tue, 10 Apr 2018 00:00:00 GMT

Last Build Date: Tue, 10 Apr 2018 07:45:49 GMT

 



Justice as IdentityUnveiling the Mechanics of Legitimation in Domestic Atrocity Trials

Tue, 10 Apr 2018 00:00:00 GMT

Abstract
Although the historical function of criminal courts tasked with adjudicating episodes of mass violence is well established, the precise purpose behind narrating history within atrocity trials remains a matter of contestation. This article examines how certain domestic atrocity trials have constructed narratives of the past aligned with the nation-building aspirations of those states in which they were convened. Rather than framing justice primarily in terms of upholding standards of fairness to the accused or responding to the needs of victims and local communities, the domestic atrocity trials examined in this article reflect a notion of ‘justice as identity’ whereby the criminal courtroom becomes a didactic mechanism of nation-building. The article examines two domestic atrocity trials in particular — the German trial of Auschwitz guards and the French trial of Paul Touvier, a former regional chief of the Vichy Milice. By revealing how these trials prioritized competing conceptions of the rule of law — the Auschwitz trial relying on a conservative conception of the rule of law underpinned by a strict legality conception of the principle of legality, and the Touvier trial relying on a more transformative conception of the rule of law underpinned by a substantive justice conception of the principle of legality — this article reveals an important dimension of the mechanics by which domestic atrocity trials have been able to legitimate particular conceptions of national identity out of specific interpretations of a nation’s past.



The Legality of Rebel Courts during Non-International Armed Conflicts

Fri, 23 Mar 2018 00:00:00 GMT

Abstract
This article examines relevant norms concerning trials conducted by courts established by armed non-state actors (referred to as ‘rebels’) during non-international armed conflicts. While such courts are often justified by rebels in the interest of securing law and order, states’ perceptions are more negative, especially the territorial state concerned. This raises questions under international humanitarian law, human rights law and international criminal law on the legality of such courts and of fair trial guarantees. Legal deficiencies may result in individual criminal responsibility for the individuals involved, including judges and those carrying out sentences. This article pays attention to the intention held by states when drafting relevant norms and a recent case where a domestic court in Sweden ruled on the individual criminal responsibility of a soldier for carrying out sentences issued by a rebel court, a first for any court worldwide. The dilemma of rebel courts reveals opposing interests in international humanitarian law and international criminal law and raises important policy considerations.