Abstract
Rule of law constitutes a significant principle for the implementation of the ethics and philosophy of criminal justice. The principle of rule of law or the principle of enforcement of justice in accordance with the rules and provisions embraces therefore the entire historical philosophy of law. This historical philosophy of law does not only mean legality but also morality. However, one may strongly violate both these principles of the rule of law that their prevention may not only be impossible but also unsolvable. Here, the only principle which may be beyond the principles of morality and legality, is the norm of love. This is a norm of a legal system that it can no longer tolerate violations of the principles of morality and legality.
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Notes
- 1.
Nussbaum (2013), pp. 30–31, 35–39.
- 2.
Id., at 45.
- 3.
However, I am fully aware of the fact that both tribunals have had strong political motives. The chief question was not in fact to help the victims but to access the will and interests of the strong nations. This can be particularly examined in the structure of the Tokyo Tribunal, which demonstrated itself to be a show tribunal in order to gain Japanese gold. In fact, different acts of the military judges corrupted and terminated the entire justice system and prosecution of those who had participated in the killing of millions of people.
- 4.
For the European Court of Human Rights, see http://www-user.uni-bremen.de/avosetta/hydenconstrights.html (Accessed May 31, 2015); For the Human Rights Committee of the United Nation and serious violations of the International Covenant on Civil and Political Rights, see CCPR/C/88/D/1416/2005 (10 November 2006) or http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsh0NOQzIlNsoUFstAtJW4fuo7HcOEe2RBCW3JoVfYCkiyI95uu4vvQbGTkpqAAWg%2f0DZKaNo6qgjQh9hajtajOz9D%2bVZaFfKZZIKLpPm1Ht3CrENInUn9L2LtKvgimI6IA%3d%3d. The above case was brought against Sweden by Egyptian nationals, and Sweden was sentenced and accepted its responsibility for gross violations of the provisions of the Convention. The substantive issues in the Committee were “Torture or cruel, inhuman or degrading treatment or punishment – exposure to a real risk of torture or cruel, inhuman or degrading treatment or punishment and/or manifestly unfair trial in a third State – no respect for due process in process of expulsion of an alien – ineffective domestic remedies against alleged violations – frustration of the right to effective complaint.” Sweden finally paid damages. Nevertheless, both victims had undergone severe torture under the supervision of the CIA in Egypt. Available at http://sverigesradio.se/sida/artikel.aspx?programid=83&artikel=1230523; In 2013, the Swedish Minister of Justice clearly stated that “obviously, it was wrong to execute a deportation to Egypt.” The case was the mistake of the whole government. http://www.unt.se/omvarld/bodstrom-angrar-utvisning-2584595.aspx; For Julian Assange case see http://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17012&LangID=E (All accessed February 14, 2016).
- 5.
(Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004)).
- 6.
A central question is “whether lawyers are consigned to do dirty work “for the love of country” or in the name of political expediency to the detriment of the law, and particularly of international criminal law. The best example of this point is the resurrection of criminal conduct that many of us thought was obliterated by our legal system years ago. Now we are burdened by allegations of torture and cruel and degrading treatment of detainees, and by the legal rationales for such practices, inflicted “for the love of country” during the so-called war on terror.” Scheffer (2009), pp. 665–678 at 666–677. Available at http://www.auilr.org/; http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1099&context=auilr, (Accessed October 20, 2014).
- 7.
For example, whilst there were a considerable number of young men in Germany “who, for love of country, threw themselves into death’s embrace on the Eastern front in 1942, there were many other men on the Eastern front, or with the Einsatzgruppen, or in Poland—for example the 101 Reserve Police Battalion—who, for the same love of country, engaged in the vilest atrocities against civilian men, women, and children.” Al-Hussein (2009), pp. 647–664 at 665. Available at http://www.auilr.org/; http://digitalcommons.wcl.american. edu/cgi/viewcontent.cgi?article=1098&context=auilr (Accessed October 18, 2014).
- 8.
Elshtain (2006), p. 155.
- 9.
The colonial power by regulating sanitation, health, education, or public conduct started to believe that “they were in Africa for local peoples’ own good. The idea rule of law seemed to them to provide evidence of this fact, and it powerfully legitimized colonial rule.” Mann and Roberts (1991), p. 3. One can even conclude that the genocide of almost 800,000 Tutsis and moderate Hutus in Rwanda traces back to the tensions which had been initiated by the Belgian government’s colonisation of the two ethnic groups in 1922. The Belgian authorities supported the Tutsi political power and degraded the Hutus by imposing the compulsory use of identity cards for the two groups. These tensions became more and more visible over decades and finally resulted in a Hutu revolution declaration of independence in 1962 and the creation of the international legal personality of the Rwandan Republic. From this time on, the country was engaged in infrequent violence between the Hutu government and Tutsi rebels. The Rwanda Patriotic Front (RPF), formed by Tutsi refugees who had sought asylum with their families in Uganda, invaded Rwanda, starting the Rwandan Civil War in 1990 to 1994. The Tanzanian International Criminal Tribunal for Rwanda prosecuted and punished 93 individuals who had taken part in the 1994 genocide.
- 10.
Berman (1982), p. 15.
- 11.
Aristotle, Nicomachean Ethics, Book V, in Morris (1959), p. 21.
- 12.
Palestine has now become as the 123rd State Party to the ICC (1 April 2015). The President of the Assembly of States Parties stated that “The accession of Palestine as the 19th State Party from the Asia-Pacific region and the second from the Middle-East, is a new stage in the quest for universality for the Statute. We hope that it will pave the way for other countries in the Middle-East who, by adopting the Rome Statute, will strengthen the International Criminal Court in its fight against impunity for mass crimes.” Available at http://www.icc-cpi.int/iccdocs/PIDS/press/01-04-15-ASP-speech.pdf (Accessed May 20, 2015).
- 13.
Creation of an equal justice has been long struggled for against the historical background of Europe. See Cappelletti et al. (1975), pp. 1–14.
- 14.
According to Article 1 of the United Nations, the purposes of the organisation are “1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.”
- 15.
Trechsel (1997), pp. 94–119 at 101–105.
- 16.
It must be emphasised here that, although the Soviet Socialist Republic was one of the perpetrators of the draft on the apartheid regime, it was itself practicing very serious discrimination against the countries which were occupied by its government.
- 17.
Shaffer (1997), pp. 963–970.
- 18.
Examine Shaffer (1997), pp. 963–991.
- 19.
Boot (2002), pp. 609–631.
- 20.
(2010) 51 EHRR 287, para 89.
- 21.
Franck (1995).
- 22.
Roberts (2009), pp. 347–380 at 374.
- 23.
Bulacio Case, Judgment of September 18, 2003, Inter-Am. Ct. H.R., (Ser. C) No. 100 (2003), paras. 114 and 115. Available at http://www1.umn.edu/humanrts/iachr/C/100-ing.html (Accessed April 29, 2015).
- 24.
Id.
- 25.
Cryer (2009), pp. 381–400 at 399.
- 26.
Gai Institutiones or Institutes of Roman Law by Gaius, with a translation and commentary by Edward Poste, 4th ed. revised and enlarged by E.A. Whittuck, with an historical introduction by A.H.J. Greenidge (Oxford: Clarendon Press, 1904), 1.
- 27.
Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgement, ICJ Reports 1964, p. 6 at para. 65, Judge Tanaka, Separate Opinion.
- 28.
Meyer (1963), pp. 125–134 at 125–126.
- 29.
Ross (1958), p. 280.
- 30.
Id.
- 31.
Id.
- 32.
Gans (2012), p. 40.
- 33.
Ashworth (2006), pp. 92–96.
- 34.
Meyer (1963), pp. 125–134 at 127.
- 35.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). Separate Opinion of Judge Weeramantry, http://www.icj-cij.org/docket/files/91/7361.pdf, 55.
- 36.
Trechsel (1997), pp. 94–119 at 110–111.
- 37.
Schabas (2002), pp. 41–43.
- 38.
Novak (2014), pp. 31–32, 73–74, 125–126.
- 39.
Dworkin (1996), p. 26.
- 40.
See http://europa.eu/scadplus/constitution/objectives_en.htm (Accessed May 3, 2015).
- 41.
Dworkin (1996), p. 26.
- 42.
“The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values, which are set out in Article I-2, are common to the Member States. Moreover, the societies of the Member States are characterised by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men. These values play an important role, especially in two specific cases. Firstly, under the procedure for accession set out in Article I-58, any European State wishing to become a member of the Union must respect these values in order to be considered eligible for admission. Secondly, failure by a Member State to respect these values may lead to the suspension of that Member State's rights deriving from membership of the Union (Article I-59).” http://europa.eu/scadplus/constitution/objectives_en.htm (Accessed May 3, 2015).
- 43.
Para. 37. ICTY, available at http://www.icty.org/x/cases/aleksovski/acjug/en/ale-asj000324e.pdf (Accessed April 4, 2015).
- 44.
Katouzian (2003), p. 361 at 362–3.
- 45.
Id., at 374–6.
- 46.
Eckes and Kondtandinides (2011), p. 1.
- 47.
For the security system of Europe and the externalization of internal security, see Guild (2008).
- 48.
Virgil, The Aeneid Book II (Translated by A. S. Kline, 2002). Available at http://www.poetryintranslation.com/PITBR/Latin/VirgilAeneidII.htm#_Toc536009309 (Accessed July 12, 2015).
- 49.
- 50.
Joseph Giuseppe Mazzini (1846). Mastellone (2001), p. 3. See also https://archive.org/stream/newpoliticalecon00roserich/newpoliticalecon00roserich_djvu.txt (Accessed May 27, 2015).
- 51.
ICTR-96-4-T, para. 581.
- 52.
Locke (1689), see Online Library of Liberty, A collection of scholarly works, http://oll.libertyfund.org/titles/locke-the-two-treatises-of-civil-government-hollis-ed (Accessed March 31, 2015).
- 53.
Trechsel (1997), pp. 94–119.
- 54.
This conclusion is formulated by David J. Hill who has written an introduction to Grotius (1625), p. 8. Available at http://oll.libertyfund.org/titles/grotius-the-rights-of-war-and-peace-1901-ed (Accessed April 27, 2015).
- 55.
Hinarejos (2009), p. 19.
- 56.
Hazan (2004), pp. 131–133.
- 57.
Hinarejos (2009).
- 58.
Grotius (1625), p. 281; available at http://oll.libertyfund.org/titles/grotius-the-rights-of-war-and-peace-1901-ed (Accessed April 27, 2015).
- 59.
- 60.
Id., at 309.
- 61.
Walsh (2006), p. 53.
- 62.
Hanly (2006), p. 48.
- 63.
Id.
- 64.
For a discussion on the concept of guilt, see Ross (1975), pp. 1–12.
- 65.
- 66.
Hanly (2006), pp. 73–77.
- 67.
McIntyre et al. (2012), pp. 52–53.
- 68.
Ingraham (1979), pp. 1–8.
- 69.
Andenaes (1965), p. 52.
- 70.
According to one view, legal norms are either rules or principles. See Alexis (2002), p. 44.
- 71.
Malekian (1993), pp. 1–10.
- 72.
Particularly see the recent confessions of the British Prime Minister, Tony Blair, and his great regret for the destruction of Iraq.
- 73.
For most of these instruments, see Malekian (2007).
- 74.
Examine Eser (2009), pp. 163–190. www.freidok.uni-freiburg.de/volltexte/9800. Consult also Eser and Rettenmaier (2009), pp. 222–237.
- 75.
Examine also Goodale and Merry (2007).
- 76.
Römer (2010), p. 94.
- 77.
Shay (1994).
- 78.
Consult Gilligan (1996–1997).
- 79.
DeValve (2014).
- 80.
“At the bottom of the heart of every human being, from earliest infancy until the tomb, there is something that goes on indomitably expecting, in the teeth of all experience of crimes committed, suffered, and witnessed, that good and not evil will be done to him. It is this above all that is sacred in every human being.”
- 81.
For the development of love in religion see Turner (2014), pp. 135–153; Gorsky (2014), pp. 43–55; Barnes (2014), pp. 11–42; Elior (2014), pp. 103–134; Andreopoulos (2014), pp. 57–71; Chittick (2014), pp. 155–180; Shah-Kazemi (2014), pp. 73–101; see also Lumbard (2016); Pour-Golafshan (2012); Kamal (2014); Awadallah (2005).
- 82.
Fromm (1956, 2006), p. xvii.
- 83.
See the judgment of the Inter-American Court over the case of La Cantuta, Fujimori. 11 IACHR, Case La Cantuta v. Peru, judgment of 29 November 2006, Ser. C. No. 160, para. 160.
- 84.
Ramcharan (1985).
- 85.
Human Rights Committee, Communication No. 45/1979: Colombia, 31/03/82, CCPR/C/15/D/45/1979 Colombia, 31/03/82, CCPR/C/15/D/45/1979 (Jurisprudence), 31 March 1982, available at http://www.ohchr.org.
- 86.
Römer (2010).
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Malekian, F. (2017). The Modus Operandi of the Norm of Love in Criminal Justice. In: Judgments of Love in Criminal Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-46900-3_4
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