Journal Article

Justice as Identity

Barrie Sander

in Journal of International Criminal Justice

Volume 16, issue 2, pages 203-228
Published in print May 2018 | ISSN: 1478-1387
Published online April 2018 | e-ISSN: 1478-1395 | DOI: https://dx.doi.org/10.1093/jicj/mqy015
Justice as Identity

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  • Criminal Law
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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.

Journal Article.  13484 words. 

Subjects: Criminal Law ; International Law ; International Criminal Law ; International Humanitarian Law ; Transnational Crime

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