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- Title
Reconciling Justice and Legality.
- Authors
de Sanctis, Francesco
- Abstract
This article addresses the tension between justice and legality faced by national judicial systems in the context of transitional justice. The respective positions taken by the national courts in Bosnia and Herzegovina and the European Court of Human Rights (ECtHR) are analysed on the fairness of punishment in cases concerning domestic atrocity crimes and compliance with the principle of legality. This article argues that a position of strict legality would not serve justice while at the same time respecting legality. To support this position, theory and practice related to the application of the principle of legality and lex mitior in particular, are examined. The analysis suggests that varied understandings of the principle of legality and its rules are consistent with the rule of law in a democratic society. Finally, this article submits that the ECtHR should adopt the so-called ‘necessity test’ to assess the compatibility of limitations to the principle of legality with international human rights law. In the author’s view, domestic jurisdictions and international human rights bodies should apply this test to ensure a satisfactory balance between justice and legality, when addressing rule of law dilemmas of the kind described herein.
- Subjects
EUROPEAN Union countries; BOSNIA &; Herzegovina; JUSTICE -- International cooperation; PUNISHMENT; ATROCITIES -- Law &; legislation; JUSTICE administration; RULE of law; WAR crimes; INTERNATIONAL law &; human rights; ACTIONS &; defenses (Law)
- Publication
Journal of International Criminal Justice, 2014, Vol 12, Issue 4, p847
- ISSN
1478-1387
- Publication type
Article
- DOI
10.1093/jicj/mqu047