The Nuremberg Trial and its Impact on Germany

The impact of the Nuremberg trial on Germany has changed overtime. It is not only a question of evolving legal debate, butalso a correlation of historical, political and moral developments.The author considers the reception of the International MilitaryTribunal (IMT) trial during the Cold War. West Germany rejectedNuremberg's historic precedent, principally on the grounds thatthe Allies had enforced victors’ justice, and that theTribunal had applied ex post facto law by violating the nullumcrimen principle. Meanwhile, East Germany seemingly took upthe cause of Nuremberg by prosecuting minor Nazi perpetrators.However, this affirmation was politically motivated, and itled to inhumane abuses of power, exemplified by the Waldheimtrials. The reunification of Germany marked the beginning ofa positive approach to the Nuremberg legacy: the new generationof judges, politicians and academics was increasingly sympatheticto international criminal justice, and adopted the Nurembergprecedent by dealing judicially with crimes committed in theEast during the Cold War. The study goes on to deal with therelevance of West German legal critique for modern internationalcriminal law. The author suggests that a distinction shouldbe made between true victims of international crimes and thosewho wish to revise history by portraying themselves as such,as many West Germans did after World War II. Moreover, the ‘victors’justice’ argument must not be used to conceal the factthat justice has indeed been administered. However, the criticismof the IMT's violation of the nullum crimen principle is firmlygrounded in the German, as opposed to Anglo-American, legaltradition.     

Vectors of traumatic memories and mass-mediated representations of the ‘last’ Nazi trial of John Demjanjuk

This is an ideological critique of key vectors of memory that could have circulated during the Munich trial of John Demjanjuk. While many members of the mainstream press applauded the efforts of German prosecutors who seemed to be dispensing belated justice to Europe’s ‘second generation,’ the circulation of these select legal vectors left us truncated World War II histories. Moreover, the binary choices that were posed stood in the way of more comprehensive and nuanced studies of Stalinism, Nazi and collaborator culpability.     

Victor’s justice or restorative justice: exploring the value of participation for Bangladesh’s future reconciliation process

Participation is a widely accepted process value in restorative justice, but its nature varies from context to context. This study explores the nature of participation in the context of Bangladesh’s future reconciliation process. Case study and qualitative interviews are employed to understand the phenomenon; the deductive and inductive data are analyzed with NVivo 10 software. On the basis of findings from three in-depth qualitative interviews, and examples from Rwanda’s gacaca courts and the Extraordinary Chamber in the Courts of Cambodia, this study argues that engaging and inclusive participation from all stakeholders is essential for a future reconciliation process in Bangladesh. It contends that the involvement of the United Nations would ensure rule of law, due process, and safety and security of the victims and perpetrators. Four inductive themes of participation – engagement, inclusiveness, stakeholders, and safety and security – are particularly highlighted.     

The Kids are Alright: Making a Case for Abolition of the Juvenile Justice System

When considering abolition of the criminal justice system, there is no greater or more impactful relevance than for juveniles that find themselves inextricably linked to the juvenile justice system. From its inception, the philosophical foundation of juvenile care was to provide individualized, compassionate assistance to young men and women perceived to be in need of emotional care and/or social control. With the establishment of the Cook County Juvenile Court in 1899, the American juvenile justice system has endured a 118-year odyssey that has produced progressively rational, largely unsympathetic, and increasingly punitive practices. With happenings such as the ‘school-to-prison pipeline’, ‘juvenile life without the possibility of parole’, ‘teen courts’, and ‘deferred prosecution probation’, current juveniles that make unassuming mistakes and errors in judgment are adjoined to a system that sustains and reinforces itself through these mistakes and errors. The charge of this article is to recommend the abolition of the contemporary juvenile justice system, with safeguards for the protection from serious offenders and a return to the compassionate care that is warranted for the majority of juveniles that currently bolster the system.     

Iron triangle of the gong jian fa: Lessons from wrongful convictions in capital cases?

This article examines the iron triangle of the gong jian fa (police, prosecutors and courts) in China, based on Chinese lessons from high-profile wrongful convictions in capital cases. It argues that the iron triangle acts as both an administrative and a political control on such cases, behind which lies overly close cooperation between the three state institutions. This cooperation often results from coordination by local political-legal committees (PLCs). Under this institutional environment, the police, prosecutors and courts have to work together and cooperate with combating crime, without necessary restricts to ensure criminal justice even in capital cases. Responding to repeated occurrences of such typical injustices, China has promoted several waves of justice reforms to prevent and reduce wrongful convictions over the last ten years, but has failed to make substantive progress without effectively addressing the iron triangle. This continued failure calls for a holistic approach to future systemic reform. Particularly, specific measures are required to enhance judicial independence and to reduce intervention from local PLCs during the handling of individual cases. Such reforms would greatly reduce the risk of wrongful convictions in capital cases.     

Female Defendants and Criminal Courts in Taiwan: An Observation Study

It has long been contended that the criminal justice system extends the influence of patriarchy in society. Feminist and critical criminologists have produced countless examples of the male domination in the criminal justice system. Critics of law and criminal justice point out that the system treats women the same way as does the mainstream society (MacKinnon 1989, 1991; Smart 1989). Therefore, criminal justice cannot be expected to remedy injustices legally before they are recognized as injustices socially. Sociological studies in crime and delinquency have also neglected gender issues. By employing the qualititaive research approach of field observation, this study focuses on how practitioners in three criminal courts in Southern Taiwan interact with female defendants. The findings point out that the court system was unbending in treating the observed defendants in a condescending manner, and expedited the trial process to pronounce the defendants’ guilt. The study aims to offer explicit and nuanced empirical evidence of how gender complicates courtroom interaction. Evidence from this study also forms the basis for policy recommendations and future reform in the criminal justice system.     

民事判决中的证据失权:案例与分析

以证据失权为核心的举证时限是《证据规定》设立的一项新制度,也是其实施过程中遇到最大阻力的一项制度。我国法院的审判实务表明,在《证据规定》颁布之初,一些法院对逾期举证采取严格的失权措施,但随着时间的推移,法院对证据失权采取了越来越慎重的态度。当逾期举证的当事人并无故意或重大过失时;或会造成一方当事人实体权益的重大损失时;或会使裁判结果与实体公正严重冲突时,即使按照《证据规定》应当失权,法院也会做出不失权的选择。     

The myth of popular justice under communism: A comparative view of the USSR and Poland

This paper describes two ‘popular justice’ institutions which exist in both the USSR and Poland: people's assessors and social courts (workers' courts and residential tribunals). An attempt is made to assess these developments in light of the official national ideology. In addition, these institutions are placed within the context of contemporary Western debates on popular justice in order to test the applicability of Western ideas to the reality of Soviet-style communism. While the paper does not attempt to assess the adequacy of the critical Western voices which warn against the dangers or illusory advantages of community justice in Western democracies, it demonstrates that these ideas are indeed validated when tested within the communist reality. The social courts tend not only to reflect the authoritarian relations prevailing in the communist economy, but also serve to perpetuate them. The lay assessors who accompany judges in ordinary courts are extremely passive and their influence on the process and outcome of the adjudication seems to be minimal. Above all, they cannot influence the law itself or the legal structures in which they are participating.     

Dialogues of the War on Drugs: towards restorative reentry initiatives

The injustices of mass incarceration and the ‘War on Drugs’ are a much debated topic in the United States. My project engages this thematic field by examining how formerly incarcerated people discuss the War on Drugs and mass incarceration. I analyze the narratives of 17 formerly incarcerated men who volunteered to participate in: (1) life story interviews, (2) focus groups and (3) semi-structured interviews. Both restorative justice and reentry have been criticized for failing to consider the social, structural, and historical inequalities for marginalized groups. I contend that my subjects’ engagement with historical and autobiographical narratives contributes to an innovative practice borrowing from restorative justice in the context of reentry. The preliminary results confirm that for those who were on the frontline of the War on Drugs, narrating their life story was a cathartic experience and discussing collective memories of slavery and Jim Crow in a group setting became an educational moment and reaffirmed the need to rethink this history. I found the older generation believes the past should be remembered and racism still exists, while the younger generation subscribes to a colorblind view of society and wants to move on.     

Adjudication of Islamic banking and finance cases in the civil courts of Malaysia

The adjudication of Islamic banking and finance (IBF) laws in Malaysia is unique given the Malaysian parallel legal systems. Although IBF is a branch of Islamic law, the civil court has the appropriate jurisdiction to decide the cases. This is due to the fact that banking falls under the items 7 and 8 of the Federal List of the Federal Constitution. The trails of decided cases showed that there are problems in resolving IBF cases in the civil courts. This paper aims to discuss the adjudication of Islamic Banking in the civil courts. The authors employed the method of legal documents analysis in analyzing the IBF cases. The analysis highlighted four obstacles in adjudicating IBF in civil courts, namely; inadequacy of existing legal framework, complications of legal documentation, competency of civil court judges and expert evidence. It also analysed the four approaches adopted by the civil courts in deciding IBF cases; the ‘parties to be bound by their agreement’, the ‘strict adherence to civil law’, the ‘justice and equitable’ and the ‘looking into the substance’.     

“This case is about you and your future”: Towards Judgments for Children

A handful of ‘child-friendly’ judgments have emerged in the UK in recent years, attempting to adopt a child-centred approach to the decision-making stage of the legal process. Most notable is Sir Peter Jackson's judgment in Re A: Letter to a Young Person which, in taking the form of a letter to the child, has been applauded as a model of how to achieve ‘child friendly justice’. This article examines how and why the form and presentation of judicial decisions is an important aspect of children's access to justice, considering not just the potential but the duty of judges to enhance children's status and capacities as legal citizens through judgment writing. We identify four potential functions of judgments written for children (communicative, developmental, instructive and legally transformative), and call for a radical reappraisal of the way in which judgments are constructed and conveyed with a view to promoting children's access to justice.     

Lay Participation in Danish Crime Trials: On the Interaction between Lay and Professional Judges during Deliberation

While there is abundant research on common law jury systems, we know less about lay participation in civil law crime trials, often called ‘mixed courts’ or alternately ‘mixed tribunals'. Here, a professional judge and a number of lay judges deliberate together on the issues of guilt and sentencing. This joint deliberation has naturally led both public opinion and research to focus on power relations such as lay judges’ dependence on the professional judges. Based on an ethnographic study of deliberation processes, the present article offers a different perspective on lay judges’ contribution and argues that their decision making rests on a hybrid construction of knowledge in the continuous interaction between the professional judge and lay participants during deliberation. The analysis of this decision‐making process contributes to our understanding of how ordinary people selected for this civic duty create knowledge about justice.     

The threat of ‘woolly-haired grandchildren’: Race,the colonial family and German nationalism

The German colonial world was marked by an ostensibly self-evident boundary between the white ruler and the black ruled that situated Europeans and indigenous peoples as diametrically opposed and socially discrete. This situation, however, was problematised by the gendered and sexualised interactions between European and indigenous society. The result was often a slippage between the administrative attempts to create recognisably ‘German’ families (perceived in racial terms), and the antinomian realities of human relationships that transgressed racial lines. This in turn gave rise to reproductive anxieties in the face of a new liminal population of ‘half-castes’ (Mischlinge) that refused the white–black, master–slave dialectic of the colonial ideal. Many historians have recently attempted to link the troubled history of race relations in German Southwest Africa to the later history of Nazi anti-Semitism and genocide, by focusing on the apparent continuities between the Holocaust and the Herero–Nama wars. However, an alternative genealogy for the Holocaust that refutes this genocidal continuity thesis is possible through an investigation of the origins and contents of the debates about the nature of the German colonial family and its relationship to German citizenship between 1904 and 1914.     

From Calculated Cruelty to Casual Violence – The United Nations War Crimes Commission and the Prosecution of Torture and Ill-Treatment

The article looks at the records of both the United Nations War Crimes Commission (UNWCC) and national courts with respect to the post-World War II prosecution of the crimes of torture and ill-treatment. It illustrates how the UNWCC and national courts dealt with the relevant legal questions, applicable laws, crimes at hand, as well as issues of retroactivity and defenses. The article also discusses the UNWCC’s contribution to the development of relevant international law, both in terms of state practice and precedent. Finally, it acknowledges the legacy of the UNWCC and post-World War II prosecutions, which constituted a collaborative effort to bring perpetrators of international crimes to justice.     

Access to justice and human rights in Afghanistan

In anthropological and legal literature, the phenomenon termed ‘legal pluralism’ has been interpreted as a co-presence of legal orders which act in relation to their own ‘levels’ of referring ‘fields’. The Afghan normative network is generally described in terms of pluralism, where different normative systems such as customs, shari’a (Islamic law), state laws and principles deriving from international standard of law (e.g., human rights) coexist. In order to address the crucial question of access to justice, in this article, I stress the category of legal pluralism by introducing the hypothesis of an inaccessible normative pluralism as a key concept to capture the structural injustices of which Afghans are victims. Access to justice can be considered a foundational element of every legal project. Globally, the debates concerning the diffusion and application of human rights develop at the same time ideologically, politically, and pragmatically. Today in Afghanistan, these levels are expressed in all their complexity and ambivalence. It is therefore particularly significant to closely observe the work done by the Afghanistan Independent Human Rights Commission and to discuss the issue of human rights by starting from a reflection on what might be defined a socio-normative condition of inaccessibility.     

The threat of ‘woolly-haired grandchildren’: Race,the colonial family and German nationalism

The German colonial world was marked by an ostensibly self-evident boundary between the white ruler and the black ruled that situated Europeans and indigenous peoples as diametrically opposed and socially discrete. This situation, however, was problematised by the gendered and sexualised interactions between European and indigenous society. The result was often a slippage between the administrative attempts to create recognisably ‘German’ families (perceived in racial terms), and the antinomian realities of human relationships that transgressed racial lines. This in turn gave rise to reproductive anxieties in the face of a new liminal population of ‘half-castes’ (Mischlinge) that refused the white–black, master–slave dialectic of the colonial ideal. Many historians have recently attempted to link the troubled history of race relations in German Southwest Africa to the later history of Nazi anti-Semitism and genocide, by focusing on the apparent continuities between the Holocaust and the Herero–Nama wars. However, an alternative genealogy for the Holocaust that refutes this genocidal continuity thesis is possible through an investigation of the origins and contents of the debates about the nature of the German colonial family and its relationship to German citizenship between 1904 and 1914.     

Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom

This article considers the role of emotion in the eighteenth-century courtroom. It discusses the work of judges and magistrates in constituting and upholding a ‘grand narrative’, which legitimized English criminal law. This grand narrative was inherently emotional, activating patriotism and love of justice, but also fear of punishment through the performance of ‘emotional labour’ from the judgment seat. However, while performing the majesty of the law, judges attempted to balance a number of complicating factors, such as the rise of sensibility, the role of the press, and their own emotions about criminal justice. The growing presence of professional counsel from the end of the century also complicated the emotional tenor of criminal trials. Moreover, the majesty of the law was undermined and even corrupted by the representation of trials and executions in the popular press. Far from viewing displays of emotion as inappropriate, it appears that many contemporaries held emotion to be an integral part of trial process, and of the majesty of the law.     

司法确定力的形成逻辑

司法确定力是与法院的宪法地位密切相关的,宪法对法院的独立地位以及解决纠纷、救济权利和发展法律的功能定位,是司法确定力的权威渊源;司法确定力来自于司法的管辖权威,法院在法律规定的范围内、在自己的能力范围内受理案件,运用法律知识、司法理性和司法经验,按照司法规律对案件事实和法律适用问题进行权威判断,为司法确定力提供了前提;司法确定力源于司法的整合权威,法院在审理案件过程中,通过对立法时的民意与法律适用时的民意、普遍正义与个别正义、法律正义与社会正义的有机结合建构了司法的整合权威,为司法确定力提供坚实的基础;司法确定力依赖于裁判的执行权威,当事人自觉履行生效判决的文化意识和国家强制执行生效判决的权威能量为司法确定力提供坚强的保障。     

Testing the Packer Theorem: The Efficiency of Florida’s Criminal Circuit Courts

Herbert Packer’s models of the criminal process are criminal justice theorems, often the foundation of student introduction to the field in introductory textbooks. To date, there is little empirical analysis of the conceptual foundations of the process-based models, namely that courts are more efficient through the utilization of plea bargains, while an increase in trials necessarily decreases efficiency. The present results reveal wide variability in Florida circuit criminal court efficiency within and between circuits from 2004/05 to 2010/11. Regression analysis revealed that the year over year difference in both plea bargain (β?=?.14) and trial percentage (β?=?.13) significantly predicted (p?<?.05) year over year changes in efficiency, but explained a small amount of the variance (R ²?=?.026) controlling for other factors (total model R ²?=?.58–.62). These results show there is more capacity for trials within the Florida courts, and an increase in trials does not negatively impact court efficiency as expected but that other factors are far more relevant in explaining changes in efficiency outcomes. Furthermore, the Packer “assembly line” analogy, a basic tenet of the criminal process, is not found: plea bargains do not strongly predict or explain court efficiency, with structures playing a greater role in court outcomes than the processes conceptualized by Packer. The application to courts and impact on criminal justice education are discussed.