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SOCI 470
Catherine Ortner

Question 2TrialsThe Rule of LawMartha Minow to respond to mass atrocity with legal prosecutions is to embrace the rule of law pg 25 trials apply existing norms and use formal legal proceedings which include hearing both the victim and the perpetrator applying the presumption of innocence and relying upon proven evidence to redress harms to bring these ideas to statesponsored or statecountenanced mass murders tortures and deprivations of human rights requires a belief that even these massive horrors can and should be treated as punishable criminal offenses perpetrated by identifiable individuals pg 25 applying the rule of law in these cases expresses the hope that legal institutions can handle such issues without betraying the ideals of law for the exigencies and pressures of politics personal biases or yet a new phase in the cycles of revenge and power struggles pg 26 a trial marks an effort between vengeance and forgiveness by transferring a desire for revenge from the individual to the statelawtrials are NOT about forgiveness they are geared towards punishment if a perpetrator is given a fair trial and found guilty they will not be forgiven but punished trials only abstractly embody reconciliation in the sense that we use them to give perpetrators a chance to fight for their own life and to be subject to the same rules and laws as the victim the trial works in the key of formal justice sounding closure through a full and final hearing a verdict a sentence pg 26 methodical careful process of litigation pg 27 the first trials were the Nuremberg and Tokyo trials conducted after WWII which have been hailed as landmarks in the struggle for a just world order however while the Nuremberg and Tokyo trials were taking place they were subject to much criticism many critics saw them as travesties to justice the spoils of the victors of war and the selective prosecution of individuals pg 27 the WWII trial processes were not used again until the international trials for Yugoslavian and Rwandan war crimes in the 1990s both idealism and cynicism surround the idea of trials idealism includes the notion of a duty to prosecute and cynicism includes the resistance to contribute money and resources to trials known rules not force should judge actions pg 29 fundamental fairness is at the heart of trials three major critiques of trials retroactivity politicization and selectivity retroactivity individual defendants in trials face charges under norms that have not previously been announced in a forum using procedures that had not previously existed this violates the rule of laws commitment to apply clear preexisting norms politicization the tribunals were not independent or removed from political pressure this violates the rule of laws ideals of impartiality and universal norms selectivity only a small number of perpetrators were actually prosecuted for their actions these criticisms existed during the Nuremberg and Tokyo trials and are now being argued against the more recent Yugoslavia and Rwanda trials the argument of retroactivity does not seem to matter much when evaluating the Nuremberg trials because the sheer unprecedented scale of deportation murder and illtreatment obviously violated any notion of duty reasonableness or fairness but it can still be argued that
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