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Transitional Justice and the Criminal Responsibility of Judges

Transitional Justice and the Criminal Responsibility of Judges

Author: Claudia Cárdenas Aravena; Jaime Couso Salas; Florian Jeßberger; Milan Kuhli
Publisher: Routledge
ISBN: 9781032746043
Published In: June 2025
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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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.

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

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