Supreme Court and Trials Term Paper

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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.

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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.....

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