The Prosecution and Punishment of Atrocity Crimes in Perspective: A Comparative Study
Date of Award
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
In responding to Atrocity Crimes (generally to War Crimes, Crimes against Humanity, Genocide, Crimes against Peace, Crimes against the Jewish People, and also to some grave forms of the more controversial crimes of Torture and Terrorism) through criminal prosecutions, states and international organizations have routinely departed from the substantive, procedural and evidentiary law applicable in the prosecution of "regular crimes." Typical subjects of such departures have included standards governing subject-matter jurisdiction, hearsay, coerced confessions, attorney-client relations, exparte communications, access to exonerating evidence, ex-post-facto criminalization and victims' rights to attend and influence the trial. Because such departures are a function of identifiable features inherent to Atrocity Crimes, the systematic alteration of legal standards in Atrocity Crime prosecutions is inevitable. The selection of criminal prosecutions as the vehicle to pursue alleged atrocity perpetrators and the departures from legal standards render disadvantages lo all actors involved in the process; namely to the accused, the victims, the prosecuting authorities and the broader national and international constituencies as well; disadvantage to the last include long intervals between the alleged perpetration of atrocities and the conclusion of trials, inaccurate evidentiary findings and consequent expansion of preexisting social gaps.
Those disadvantages will, assuming any plausible policy preferences within a standard range of values, he found, in a range of cases, to outweigh the benefits gained by prosecution and undermine its appropriateness. in identifiable others, though, the potential benefits from such prosecutions, such as the establishment of an accurate historic record, the promotion of obedience to international law standards, the emphasis on the gravity of atrocities and the sense of closure crime-victims could feel would prevail and render the prosecution desirable. The atrocity case studies of the Major Nazi War Criminals, the Krupp Corporation, Adolph Eichmann and Khalid Sheikh Mohammad, and the comparator "regular" cases of Bernard Madoff, Jeffrey Skilling, Lynne Stewart, and the Holy Land Foundation (the last two bearing remote and indirect relation to atrocities) preliminarilv suggest that the incidence of atrocity crime prosecutions should be reduced to something more nearly approaching an optimal level (criteria for which this paper identifies} and reliance upon alternative measures, applicable under the international humanitarian law or the law of human rights, expanded. Such alternative measures include, depending 011 the circumstances and the preferred policy, one or more of the following: Targeted Killings, Indefinite Detentions or Truth and Reconciliation Commissions. In some cases (such as Mohammed et al.), one (or more) of the three is, or would have been, preferable over a flawed prosecution as it can achieve some or all of the goals the last intended to obtain without engaging in Cl/1 enduring process that bluntly deviates from traditional legal standards; in other cases (such as the Major Nazi War Criminals and Krupp) the flawed prosecutions were still desirable only because no alternative legal measure was available at the time. In Eichmann, though, the prosecution was significantly more appropriate regardless of whether other measures existed. In other instances, however, criteria set by this paper suggests, the prosecution of atrocity crimes might be so flawed that it should not be pursued whet her other alternatives are available or not.
Shnaiderman, Nir, The Prosecution and Punishment of Atrocity Crimes in Perspective: A Comparative Study (2015) (unpublished S.J.D. dissertation, Duke University School of Law)
Library of Congress Subject Headings
International criminal law, Crimes against humanity--Law and legislation