有罪不罰
有罪不罰（英語：）的意思是"exemption from punishment or loss or escape from fines"（免於處罰或損失或逃避罰款）[1]。
在國際人權法中，指的是未能將侵犯人權的肇事者繩之以法。有罪不罰有時被認為是否認歷史罪行的一種形式。[2]
In the international law of human rights, it refers to the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress. Impunity is especially common in countries that lack a tradition of the rule of law, suffer from corruption or that have entrenched systems of patronage, or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities. Impunity is sometimes considered a form of denialism of historical crimes.[2]
在國際人權法中，指的是未能將侵犯人權的肇事者繩之以法，因此，它本身就構成了對受害者獲得正義和補救的權利的剝奪。有罪不罰現像在缺乏法治傳統、飽受腐敗或有根深蒂固的庇護製度、司法薄弱或安全部隊成員受到特殊司法管轄的國家尤為普遍。或免疫。有罪不罰有時被認為是否認歷史罪行的一種形式。
例子
The 亞美尼亞種族滅絕 was fueled by impunity for the perpetrators of earlier massacres of Armenians早期屠殺亞美尼亞人的肇事者逍遙法外, such as the 1890s 哈米德大屠殺.[3] After the genocide, the 塞夫尔条约 required Turkey to allow the return of refugees and enable them to recover their properties. However, Turkey did not allow the return of refugees and nationalized all Armenian properties.[4] A secret annex to the 洛桑条约 (1923年) granted immunity to the perpetrators of the 亚美尼亚种族灭绝 and put an end to the effort to prosecute Ottoman war criminals.[5][6][7][8] Hardly anyone was prosecuted for the systematic murder of hundreds of thousands of Armenians.[9] According to historian Stefan Ihrig, the failure to intervene and hold perpetrators accountable made the genocide the "double original sin" of the twentieth century.[10]
人權原則
The amended Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, submitted to the United Nations Commission on Human Rights on 8 February 2005, defines impunity as:
the impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.[11]
2005年2月8日提交給聯合國人權委員會的經修訂的《通過打擊有罪不罰的行動保護和促進人權的一套原則》將有罪不罰定義為：
The First Principle of that same document states that:
Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.
無論是在刑事、民事、行政、紀律程序中，無論是在刑事、民事、行政、紀律程序中，都無法將違法者繩之以法，因為不受任何可能被指控、逮捕、審判、調查，如果被判有罪，將被判處適當的刑罰，並向受害者作出賠償。
該文件的第一原則指出： 有罪不罰是由於國家未能履行其調查侵權行為的義務；對肇事者採取適當措施，特別是在司法領域，確保那些涉嫌刑事責任的人受到起訴、審判和應有的懲罰；為受害者提供有效的補救措施，並確保他們獲得對所受傷害的賠償；確保了解侵權行為真相的不可剝奪的權利；並採取其他必要措施防止再次發生違規行為。
真相委員會s are frequently established by nations emerging from periods marked by human rights violations – coups d'état, military dictatorships, civil wars, etc. – in order to cast light on the events of the past. While such mechanisms can assist in the ultimate prosecution of crimes and punishment of the guilty, they have often been criticised for perpetuating impunity by enabling violators to seek protection of concurrently adopted amnesty laws.[12]
The primary goal of the 国际刑事法院罗马规约 of the 国际刑事法院, adopted on 17 July 1998 and entered into force on 1 July 2002, is "to put an end to impunity for the perpetrators" [...] "of the most serious crimes of concern to the international community as a whole".[13]
参见
參考
- . Free Dictionary. [2009-12-23]. （原始内容存档于2019-05-23）.
- Avakian, Paul. . Genocide Studies and Prevention. 2018, 12 (1): 3–23 [2022-09-20]. ISSN 1911-0359. doi:10.5038/1911-9933.12.1.1512
. （原始内容存档于2021-07-23）. - Dadrian, Vahakn N. . Berghahn Books. 2003: 386 [2022-09-20]. ISBN 978-1-57181-666-5. （原始内容存档于2022-09-20） （英语）.
- Matossian, Bedross Der. . European Journal of Turkish Studies. Social Sciences on Contemporary Turkey. 2011 [2022-09-20]. ISSN 1773-0546. doi:10.4000/ejts.4411 . （原始内容存档于2022-10-28） （法语）.
- Scharf, Michael. . Law and Contemporary Problems. 1996, 59 (4): 41–61 [2022-09-20]. ISSN 0023-9186. JSTOR 1192189. doi:10.2307/1192189. （原始内容存档于2018-07-19）.
Initially, the Allied Powers sought the prosecution of those responsible for the massacres. The Treaty of Sevres, which was signed on August 10, 1920, would have required the Turkish Government to hand over those responsible to the Allied Powers for trial. Treaty of Peace between the Allied Powers and Turkey [Treaty of Sevres], art. 230, at 235, Aug. 10, 1920, reprinted in 15 AM. J. INT'L L. 179 (Supp 1921). "The Treaty of Sevres was, however, not ratified and did not come into force. It was replaced by the Treaty of Lausanne, which not only did not contain provisions respecting the punishment of war crimes, but was accompanied by a 'Declaration of Amnesty' of all offenses committed between 1914 and 1922." Treaty of Peace between the Allied Powers and Turkey [Treaty of Lausanne], July 24, 1923, League of Nations Treaty Series 11, reprinted in 18 AM. J. INT'L L. 1 (Supp. 1924). 99.
- Bassiouni, M. Cherif. . Washington University Global Studies Law Review. 2010, 9 (4): 575–593 [2022-09-20]. ISSN 1546-6981. （原始内容存档于2022-09-21）.
During World War I (WWI) (1914-18), almost twenty million people were killed... During that conflict, one situation stood out: the estimated 200,000-800,000 civilian Armenians killed in 1915. (4) In 1919, the Inter-Allied Commission (save for the U.S. and Japan) called for the prosecution of Turkish officials responsible. (5) That call was advanced on the basis of the 1907 Hague Convention's preamble referring to "the laws of humanity." (6) However, no prosecutions ensued. Instead, Turkey received immunity in a secret annex of the Treaty of Lausanne. (7)
- Dadrian, Vahakn. . Yale Journal of International Law. 1998, 23 (2) [2022-09-20]. ISSN 0889-7743. （原始内容存档于2020-12-03）.
The delayed peace settlement is, of course, the Lausanne Treaty. Yielding to the pressures of the implacable Kemalists, the victorious Allies abjectly discarded the two-year-old S~vres Treaty,26 through which they had attempted to prosecute and punish the authors of the Armenian genocide and, at the same time, redeem their promises for a future Armenia. After expunging all references to Armenian massacres (and, indeed, to Armenia itself) from the draft version,27 they signed the Lausanne Peace Treaty, thus helping to codify impunity by ignoring the Armenian genocide. The international law flowing from this treaty, while a sham in reality, lent an aura of respectability to impunity because the imprimatur of a peace conference was attached to it. A French jurist observed that the treaty was an "assurance" for impunity for the crime of massacre; indeed, it was a "glorification" of the crime in which an entire race, the Armenians, was "systematically exterminated." 2 " For his part, David Lloyd George, wartime Prime Minister of Great Britain, found it appropriate to vent his ire when he was out of power: He declared the Western Allies' conduct at the Lausanne Conference to be "abject, cowardly and infamous." 29 A creature of political deal-making, the Lausanne Treaty was a triumph of the principle of impunity over the principle of retributive justice.
- Penrose, Mary. . Boston University International Law Journal. 1999, 17: 269 [2022-09-20]. （原始内容存档于2022-09-22）.
Beginning with the Treaty of Lausanne in 1923, the award of amnesty to defeated forces has often been the political price paid for achieving a cessation of hostilities.
- Kuyumjian, Aram. (PDF). Revue de Droit (Université de Sherbrooke). 2011, 41 (2): 247–305 [2022-09-20]. doi:10.17118/11143/10302 . （原始内容存档 (PDF)于2022-03-02）.
- Ihrig, Stefan. . Harvard University Press. 2016: 7. ISBN 978-0-674-50479-0 （英语）.
- . Derechos.org. [2009-12-23]. （原始内容存档于2019-05-14）.
- "What Next for International Justice?" （页面存档备份，存于）International Center for Transitional Justice
- . [2022-09-20]. （原始内容存档于2013-10-19）.
