Judicial Responsibility and Coups d’État: Judging Against Unconstitutional Usurpation of Power

Description

This book examines the responsibility of judges of domestic courts following unconstitutional usurpation of power of government (coups d’état). It explores judges’ liability for failing to discharge their judicial duty independently and impartially, and the criminality of usurpers and their accomplices and collaborators for their violation of fundamental rights and freedoms or commission of crimes of international concern. Written by a highly regarded non-Western author, the book is coherent and meticulously researched, covering an approach to coups in an insightful and fascinating fashion. It includes a sophisticated and thorough analysis of the relevant comparative jurisprudence of domestic and international courts, with concrete examples of the best practices among decisions of domestic courts in countries that have experienced coups d’état. With an increasing global interest in the phenomenon of coups, democratic backsliding and the place and role of the judiciary as the only hope to rein in acts of unconstitutional usurpation of power, the book will be essential reading for members of the legal profession, those cherishing democracy as well as students and researchers in constitutional law, law and political science, public international law, international human rights law, international criminal law, regime changes, transitional justice and international organizations. Cover Half Title Title Copyright Table of Contents Preface List of Abbreviations 1 Introduction Overview Scope of this book Modus operandi of unconstitutional usurpation of power Judges’ roles in unconstitutional usurpation of power Practical challenges Methodological and related normative questions 2 Legal bases to assess the lawfulness of unconstitutional usurpation of power Legal bases used to validate coups Legal bases used to invalidate coups Concluding remarks 3 Permissible parameters for judges in post-coup suppression of fundamental rights and freedoms International conventions and rules of customary international law on the protection of fundamental rights and freedoms States of emergency and derogation of fundamental rights and freedoms Military tribunals Law enforcement measures Refusal to render judgments on ‘political questions' Concluding remarks 4 Availability or non-availability of defences for judges in relation to judicial responsibility post-coups Individual criminal responsibility arising from judges’ roles in an oppressive regime Independence of judiciary and allegiance to the new ‘constitutional’ order Superior orders Duress Judicial immunity Concluding remarks 5 Amnesties, pardons, immunities and other restrictions on the prosecution of usurpers of power and their accomplices or collaborators Amnesties, pardons and immunities Statutes of limitations Transitional justice A right balance Concluding remarks 6 International or extra-territorial criminal prosecution of coups-related crimes of international concern Prosecution before the International Criminal Court, ad hoc international tribunals and hybrid courts Prosecution in foreign courts exercising universal jurisdiction 7 Epilogue Index