David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jonathan Jenkins Ichikawa
Jack Alan Reynolds
Learn more about PhilPapers
In Burton M. Leiser & Tom D. Campbell (eds.), Human Rights in Philosophy and Practice. Ashgate 423--442 (2001)
In the transition from a repressive to a democratic society, the successor government faces the problem of how to deal with grave human rights violations such as killings and torture committed under its predecessor. This paper analyzes the dilemma a new government may encounter when it attempts to prosecute and punish those found responsible. On one hand, trials of chargeable officers may be able to prevent human rights abuses in the future and to facilitate instituting or restoring democracy. On the other, in the case that there were no legal rules definitively prohibiting the abuses committed by these officers, the trials require ex post facto laws, which breach the principle of nulla poena sine lege, and more generally violate the rule of law. These retroactive laws not only break legal predictability but treat individuals unfairly. After identifying both the need for, and the legal and political losses incurred by such criminal trials, the author examines the claims that international law resolves the dilemma of retroactive justice or that prosecution is justified as a fulfillment of international obligation. Then the author refers to this dilemma as “dirty hands” to characterize a circumstance in which one cannot avoid using the wrong means to obtain the best ends. Such characterization has normative implications for three aspects of trials: the process of enacting retroactive laws and the process of conducting the trials; the choice of other possible legal remedies; and the principles related to reactions in the international community.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
John Douglas Bishop (2012). The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations. Business Ethics Quarterly 22 (1):119-144.
Massimo Renzo (2012). Crimes Against Humanity and the Limits of International Criminal Law. Law and Philosophy 31 (4):443-476.
Dan E. Stigall, An Unnecessary Convenience: The Assertion of the Uniform Code of Military Justice ('Ucmj') Over Civilians and the Implications of International Human Rights Law.
Marcus Arvan (2012). Reconceptualizing Human Rights. Journal of Global Ethics 8 (1):91-105.
Robert Weisberg (1995). Review Essay / Victims' Rights in Criminal Trials. Criminal Justice Ethics 14 (2):56-62.
D. R. Cooley (2001). Distributive Justice and Clinical Trials in the Third World. Theoretical Medicine and Bioethics 22 (3):151-167.
Nghia Hoang, International Human Rights Law and the Protection of the Individual's Rights in the Age of Terrorism: The Case of the United Kingdom.
Marek Czarkowski (2006). The Protection of Patients' Rights in Clinical Trials. Science and Engineering Ethics 12 (1):131-138.
Ana Filipa Vrdoljak (2011). Cultural Heritage in Human Rights and Humanitarian Law. International Humanitarian Law and International Human Rights Law.
Adina Nicoleta Gavrilă (2011). Should the Death Penalty Be Abolished? Arguments for and Against the Centuries-Old Punishment. Journal for Communication and Culture 1 (2):82-98.
Added to index2011-11-30
Total downloads15 ( #296,054 of 1,932,507 )
Recent downloads (6 months)3 ( #271,972 of 1,932,507 )
How can I increase my downloads?