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Transitional Justice and the Criminal Responsibility of Judges

Edited by: Claudia Cárdenas Aravena, Jaime Couso Salas, Florian Jeßberger, Milan Kuhli

ISBN13: 9781032746043
To be Published: April 2025
Publisher: Routledge
Country of Publication: UK
Format: Hardback
Price: £135.00



This collective volume delves into the criminal responsibility of judges under authoritarian regimes, with case studies from Germany, Argentina, and Chile, examining their involvement in criminal human rights abuses and failures to protect victims from such crimes.

Through comparative analysis, this volume offers insights into the legal and doctrinal challenges of prosecuting judicial involvement in crimes such as murder (‘judicial murder’), kidnapping, unlawful detention and torture. Bridging a gap in transitional justice and international criminal law literature, it focuses on the rarely explored criminal responsibility of judges beyond judicial misconduct. In doing so, it provides readers with a deeper understanding of judicial roles in authoritarian regimes and the complex legal standards involved in prosecuting such cases. It also informs the ongoing discourse on judicial accountability and the potential legal implications for judges in contemporary contexts.

Transitional Justice and the Criminal Responsibility of Judges is ideal for students, scholars, and civil servants or practitioners working in the domestic or the international criminal justice system.

Subjects:
Criminal Law, Judiciary
Contents:
Introduction
Jaime Couso and Florian Jeßberger

Section A. Case Studies: Germany, Argentina, Chile
1. Settling Accounts for Nazi-era Judicial Injustice (NS-Justizunrecht) Before Allied and (West) German Courts: Charting New Territories and Failed Opportunities
Florian Jeßberger and Milan Kuhli
2. Malfeasance in Office as a Crime in the Context of Dictatorships: The Example of Judicial Perversion of Justice in the East German Waldheim Trials
Kai Cornelius
3. Prosecuting State Criminality After German Unification – Judging the Judges
Gerhard Werle and Moritz Vormbaum
4. Dictatorship and Judicial Complicity: The Case of Argentina
Omar Palermo
5. Judicial Murder in Chile: Patterns, Cases, and Doctrines for Prosecuting Jurists
Jaime Couso
6. Self-Representations of the Chilean Judiciary Regarding their Responsibility in Relation to the Crimes of the Dictatorship
Daniela Accatino

Section B. Judicial Immunity and the Invalidation of Judicial Decisions
7. Judicial Immunity and its Limits: The Anglo-American Approach
Nancy Amoury Combs
8. Judicial Immunity: A South American Approach
Javier Wilenmann
9. Invalidation of Judicial Decisions in Cases of Farcical Prosecutions: A German Perspective
Markus Abraham
10. Invalidation of ‘Judicial’ Decisions in Cases of Sham or Show Trials: An International Criminal Law Perspective
Claudia Cárdenas
11. Fraudulent Res Judicata and Impunity: A Chilean Perspective
Juan Pablo Mañalich R.

Section C. Intent, Mistake of Law and Other Issues of Imputation
12. Judicial Abuse and Mistake of Law: A Normative Approach Based on a Comparative Law Perspective
Antonio Martins
13. Defending the Indefensible: The Mistake of Law Defence Applied to the Case of Judges in Dictatorships and Rogue Regimes - A Comparative Approach
Alejandra Castillo Ara
14. Judicial Murder, Torture, and Unlawful Detention: An Overview from the Italian Legal System
Francesco Viganò
15. On the Relationship Between Judicial Perversion of Justice and Judges' Participation in Crimes Against Humanity
Luis E. Rojas A.

Section D. Modes of Responsibility and Criminal Association
16. Superior Responsibility and Judicial Murder: When Judges Are Not “Superior”
Héctor Hernández Basualto
17. Jurists’ Responsibility for Crimes of Dictatorships – An International Criminal Law Perspective
Elies van Sliedregt
18. Judges’ Responsibility for Participation in a Criminal Association: A Comparative and Theoretical Analysis
Fernando Londoño M.
19. Judges as Criminal Associates of Totalitarian Regimes: The Chilean Case Under the Framework of International Law
Rocío Lorca
20. A Judge’s Participation in a Criminal or Terrorist Organisation: From Nuremberg to Contemporary German Criminal Law
Julia Geneuss
Closing Remarks
Claudia Cárdenas and Milan Kuhli