Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes

Until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights.  The politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities.  Latin America exemplified this trend in the 1980s, while also popularizing truth commissions.  The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful. However, growing international human rights and international criminal law jurisprudence began to slowly put in question the legality of amnesties.   Recognition of individual rights chipped away at absolute state sovereignty by building recognition of the state duty to investigate, prosecute, and punish those responsible for serious violations of human rights.  In addition, the end of the Cold War saw a new reliance on international and hybrid tribunals for criminal prosecutions, a remedy left largely dormant since the Nuremburg trials in 1945.  Jurisprudence emanating from these tribunals solidified the principle of individual criminal liability for egregious human rights violations, which previously was thought to trigger only liability based on the theory of the wrongful acts of states.

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Justice Roberts Has A Little List

the_mikado1The Supreme Court ruled yesterday in Caperton v. A.T. Massey Coal Company that the Due Process Clause of the United States Constitution is violated by the refusal of a judge to recuse herself when the disproportionate campaign contributions of a litigant on behalf of that judge create a serious, objective risk of actual bias. Rick Esenberg has posted on some of the issues raised by the majority opinion here. For me, the most interesting part of the case was actually the dissent by Justice John Roberts. In it, Justice Roberts objects to the uncertainty that federal judges will encounter as they attempt to apply this constitutional right in future cases with disparate fact patterns. In a bit of theatricality worthy of Gilbert & Sullivan, the Chief Justice’s dissent presents a list of 40 questions that the majority opinion leaves unanswered.

The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition.

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Is Anybody Out There?

clip_image002A large part of my life has been devoted to getting into law school (it was not an easy task for me), and now that I am here I find myself slightly disappointed. It is not that I don’t find law school to be challenging or interesting; it is just that it is not as intellectually stimulating as I had hoped. Maybe my expectations are too high, but is it really too much to ask to have an interesting class discussion?

Before I go any further, I want to make sure that everyone understands that I am not faulting the professors for the lack of class participation. The majority, if not all, of the professors I have had at Marquette have tried to elicit class discussions. Students are just unwilling to say anything. Wait, let me correct that:  most students are unwilling to say anything. There are some students who participate in every class, and, while I appreciate their contributions, no one wants to hear the same person talk all the time. It is about balance, about involving as many perspectives as possible to gain a greater appreciation for the law and the effects it has on individuals.

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