Justice as Identity: Unveiling the Mechanics of Legitimation in Domestic Atrocity Trials

Journal of International Criminal Justice, Vol. 16, pp. 203-228, 2018

19 Pages Posted: 1 May 2018 Last revised: 2 Aug 2018

See all articles by Barrie Sander

Barrie Sander

FGV School of International Relations

Date Written: April 10, 2018

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 the 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 prioritised 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.

Keywords: international criminal justice, domestic atrocity trials, justice, history, narratives

Suggested Citation

Sander, Barrie, Justice as Identity: Unveiling the Mechanics of Legitimation in Domestic Atrocity Trials (April 10, 2018). Journal of International Criminal Justice, Vol. 16, pp. 203-228, 2018. Available at SSRN: https://ssrn.com/abstract=3162428 or http://dx.doi.org/10.2139/ssrn.3162428

Barrie Sander (Contact Author)

FGV School of International Relations ( email )

Avenida Paulista, 14701
São Paulo, Brazil

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