In Burton M. Leiser & Tom D. Campbell (eds.), Human Rights in Philosophy and Practice. Ashgate. pp. 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)|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations.John Douglas Bishop - 2012 - Business Ethics Quarterly 22 (1):119-144.
Crimes Against Humanity and the Limits of International Criminal Law.Massimo Renzo - 2012 - Law and Philosophy 31 (4):443-476.
An Unnecessary Convenience: The Assertion of the Uniform Code of Military Justice ('Ucmj') Over Civilians and the Implications of International Human Rights Law.Dan E. Stigall - unknown
Review Essay / Victims' Rights in Criminal Trials.Robert Weisberg - 1995 - Criminal Justice Ethics 14 (2):56-62.
Distributive Justice and Clinical Trials in the Third World.D. R. Cooley - 2001 - Theoretical Medicine and Bioethics 22 (3):151-167.
International Human Rights Law and the Protection of the Individual's Rights in the Age of Terrorism: The Case of the United Kingdom.Nghia Hoang - unknown
The Protection of Patients' Rights in Clinical Trials.Marek Czarkowski - 2006 - Science and Engineering Ethics 12 (1):131-138.
Cultural Heritage in Human Rights and Humanitarian Law.Ana Filipa Vrdoljak - 2011 - International Humanitarian Law and International Human Rights Law.
Should the Death Penalty Be Abolished? Arguments for and Against the Centuries-Old Punishment.Adina Nicoleta Gavrilă - 2011 - Journal for Communication and Culture 1 (2):82-98.
Added to index2011-11-30
Total downloads16 ( #301,509 of 2,178,245 )
Recent downloads (6 months)1 ( #316,504 of 2,178,245 )
How can I increase my downloads?