Supreme Court and Trials

History Of the Western Law

Meaning - in legal terms - for nations to "stay the hand of vengeance"

Justice Robert Jackson, while delivering his opening speech in November 1945 during the infamous Nuremberg trials for war offenses, enjoined the leaders of the Allied forces to "stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law" (Bass, 424). According to Jackson, doing this would be "one of the most significant tributes that Power has ever paid to Reason." The combining factor in the winner's retribution in events like the botched trials at Constantinople and Leipzig after the first World War, the World War II Nuremberg trials, the Napoleon story and the on-going trial of the rulers of the Slobodan Milosevic's empire all point to an appreciation of the legal sector which has been well defined as "fixation on a process, a sense that international trials must be conducted roughly according to well-established domestic practice -- not just rule-following, but rule-following when it comes to war criminals" (Kislenko, 20). From this, it is clear that the belief which sees war trials as a form of final punishment by the victorious side is the preferred one as against the belief of the neo-realist and realists. This belief equally proves that dictatorial nations have converted these trials into a sort of political game with a similar action in the freethinking nations, who use them to carry out a form of official justice. Nonetheless, it could be said that in most cases, the war trials carried out by freethinking nations are as a result of the power of the legal sector, a normal part of a nation's activities. To these nations, the men standing trial are not just prisoners of war but also offenders who should be punished

1.1. What influences that decision, one way or the other?

a. Attitudes Toward Justice

The intensity of the feelings of people on the processes and results of judicial actions is greatly dependent on the level of brutality they suffered, their previous experience with their war enemies, the strength of their opinion about vengeance, their traditions and norms, the kind of information they have access to and their close friends. For example, in the case of Bosnia and Herzegovina, the reactions to the actions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) were based on the landscape after the war, the events that occurred during the war, the opinions of close friends as well as just how ready people are to see the wrong in the actions of its war offenders (Fletcher et al., 39). All of these factors had their effects reduced when the citizens returned to their homes and there was a mitigation of the media gospel of ethnic hate by the Office of the High Representative.

b. Attitudes Toward Reconciliation

The "Readiness for Reconciliation" measurement applied in Bosnia and Herzegovina was based on three factors, first was the readiness to live with people from the 'enemy' nation in eight defined scenarios, second was the readiness to embrace people from these nations and lastly, the readiness for each nation to work together. For Rwanda, which was in this case called the "Openness to Reconciliation" measurement, there were eighteen questions which cover these four main areas -- communal life, peace, social interaction and social fairness. For other regions like the Balkans, reconciliation is a process with several sub-processes which are greatly dependent on personal, social and communal beliefs. People who have no ethnic, national or dictatorial preferences possessed a greater possibility to back reconciliation. Equally, people who have faith in the judicial system and the benefits derived from the ICTY also showed a higher backing to reconciliation (Fletcher et al., 41-2). Lastly, people who had strong relationships with others from different ethnic groups before the war showed little or no resistance to reconciliation. It was difficult to know the stance of Rwanda on the subject of reconciliation. Taking prisoners to a foreign nation or the ICTR for hearing didn't really foster reconciliation but conducting of trails in the country, a process known as gacaca caused a higher acceptance of reconciliation.

c. Influence of Identity Group

The kind of social group which a person relates with has an effect on his/her reaction to any legal verdict. Therefore, ethnic origin is a major factor that should be taken into account when societal rebuilding is to be carried out. In the case of Bosnia-Herzegovina, research shows that the reactions of the people towards the ICTY had nationalist undertones. For example, the Bosniaks, who were widely seen as the ethnic group that had more causalities during the war, were in support of the ICTY while the Croats and Serbs were against it as they only saw it as a selective process aimed at punishing their people. In the case of Rwanda, there have been several differences, highlighted by research, between the Tutsi and Hutu ethnic groups about a significant number of events and opinions. Several of these differences were in their expected results of the trials with a stronger Tutsi support for unmerciful punishments while the Hutu were not really particular about their opinions. Despite this, the Tutsi were also in support of compensation. For Uganda, especially among the Acholis and non-Acholis, there were varying opinions on the topics of peace, punishment, reparations and the connection between peace and punishment (Fletcher et al., 43).

d. Exposure to Trauma

There were no identified links in the Balkan nations between the amount of suffering suffered by the people and their support for trials of war offenders or the actions of the ICTY. This was the same situation in Rwanda as the terrible experiences suffered by the people seemed not to have a defined opinion about trials. However, it was discovered that the higher the severity of the experiences the people had suffered during the war, the less supportive they were of the Rwandan trials (gacaca) and the greater their preference for the ICTR. The severity of the pain and suffering suffered by the people seems to have an effect on their reaction to trails, but this is not quite discernable (Fletcher et al., 44). The most severe of the pain and suffering endured were officially reported to be in the northern part of Uganda. The more suffering and pain suffered, the more the people supported punishment of their oppressors. However, there was a rather unexpected development where this same people believed that the society could return to its former state and all wrongs could be forgotten. Equally they also favoured the idea of pardon and forgiveness (Fletcher et al., 45).

1.2. Are states morally obliged to do so, regardless of circumstance?

On a starting note, it could be helpful to know that restitution for previous wrongs have been sought after via three main methods. The first method is via the law and judicial sector with previous wrongdoers mostly the affected parties and they are often punished by a court which analyses their past actions. Secondly, the benefits of tradition and government can be provided to the war victims, with adequate status and physical benefits which would help the community at large. Lastly, the general public is targeted for reconstruction and reunification by releasing the true account of previous events (Todorov, 30). One of the foremost methods applied here are the commissions of inquiry with an example being the South African Truth and Reconciliation Commission which made massive and lasting strides in its assigned tasks.

In most cases, nations and organizations agree that these restitutions are for their benefit and thus help them realise that peace could be a choice after all. This new opinion about public integrity is a new development and it gives even more backing to the clamour for retribution (Todorov, 33). Due to the above studies and lines of reasoning, it is clear that when nations and communities which are undergoing a reconstruction are faced with the option of delivering retribution to a former dictatorial and brutal government, as well as questioning the unity of the country altogether, it is morally right to "stay the hand of vengeance"

2. States accused of human rights violations often counter that human rights law, under the UN, is a western "imperialist" construct imposed on the rest of the world. Do you agree? Be specific in your arguments.

In some cases, free thinking nations might not back the idea of international trials while in some other scenarios; they could give it their full support. Knowing the difference between both scenarios could be crucial in the overall success of the tribunal itself. The possibility of the offenders getting punished is based on three major factors. The first and the second factors showcase the inherent focus of the prosecuting judges on the peace of their people. If there is a possible risk that the trails or opposition to imprisonment could put the lives of soldiers and civilians alike in their nations in danger, then they would be reluctant to go to trial hence lowering its chances of happening (Bass, 424; Kislenko). On the other hand, a situation where the offences were as a result of severe damage and impairment to civilians and soldiers, then the possibility of trials were really high. The third and last argument made by Bass is that trials often have links to political beliefs and opinions originating from the prosecuting nations. If the situation is such that a majority of the people are annoyed concerning a particular offence, then trials would most likely occur. Though these arguments are not conclusive, when combined, they could give proper explanations about the concept of the winner's retribution in situations like the botched trials at Constantinople and Leipzig after the First World War, the World War II Nuremberg trials, the Napoleon story and the recent on-going trial of the rulers of the Slobodan Milosevic's empire. The trials which took place in Turkey were a serious failure and were close to being a complete disaster at ICTY as the Western powers-that-be put their civilians and soldiers at risk by taking people prisoner and sentencing them (Landsman, 1581-2). Nuremberg, however, had smooth trials as these problems were absent and also because the entire populace of the IMT countries wanted justice against the Nazis for their terrible crimes.

The arrangement and commencement of trials as well as its funding often experience a number of basic challenges. Massive foreign trials need a large amount of funding and making this available could be difficult. This is clearly stated in Goldstone (155-7) where he thoroughly explained the fights he had to involve himself with against the United Nations administration which were reluctant to release sufficient funding for a prosecution and instead was trying to gain command of the entire process using this. The ICTY judges were also in support of freedom in their dealings as several of them came from an inquisitorial system and not an adversarial one.

For the inquisitorial system, the courts possess every authority to lead and control prosecutions. Even though the ICTY's tenets make it adversarial in nature, several judges made efforts to change this, especially the speed and range of the prosecution activities, at the investigator level. The diary of the leading prosecutor gives an insight into how international trials could be affected by political motives. Goldstone, who had undergone first-hand training on the topic of provisional justice via his encounters while in South Africa showed great skill in transforming the ICTY into an efficient and lasting prosecution structure (Landsman, 1586). Nonetheless, he had to be assisted greatly to make this happen. Some of the people who contributed to this include David Scheffer and Madeleine Albright, both American ambassadors. Goldstone later departed from the ICTY and left for South Africa while the judges in The Hague were yet to moderate several cases (Landsman, 1586). From his notes, the problems of creating a working and efficient global justice system were all enumerated thoroughly.

With the basis of the above opinion, the knowledge that civil liberties were developed from the West, the importance attached to civil liberties' trials by the Western nations as well as their financial backing and finally the widespread concern of the West on civil liberties issues, it is clear that this argument cannot be lightly brushed aside. Nonetheless, I believe that, considering the crucial characteristics of civil liberties in every community and the development of appropriate mechanisms and processes, mostly in the area of funding and governing of these organizations such as the UN tribunals and law courts as well as the appropriate zoning of the judge position, then the erroneous Western "imperialist" opinion should be shelved.

3. In fifty years, what will the law look like? You can address any aspect, domestic or international, but please use historical precedents and trends to make your case.

Predicting the new format the law would take fifty years from now is a quite enjoyable task as it is certain that there would have been clear changes mostly in the area of constitutional law if we are to consider the previous fifty years. Several changes have been experienced in this area however, only five which are seen as most crucial will be analysed in this essay to give an insight into the shape the next fifty years will take.

The deliberation over the unspecified liberties that are part of the Constitution is the first major change considered. In every law publication and Supreme Court trial before 1966 (Chemerinsky, 689), there is no mention of the words 'non-originalism' and 'originalism'. Thus, in the succeeding years, students of constitutional law and even Supreme Court judges are yet to come to a common ground about the meaning of this and its effect on the Constitution. Mostly, this argument has expressly focused on the Supreme Court's right in defending liberties which are not properly represented in the Constitution.