The Judicialization of Repression: Abuse of Physical Integrity and the Administration of Justice through Exceptional Courts, 1990-2005

Abstract

Over the last decade, the Human Rights Council in cooperation with the UN Special Procedures has noted the increasing recourse to military courts in trying civilians throughout the world. The Council concludes that trying civilians in military courts is a violation of international human rights because such courts are incompetent to guarantee the fundamental elements of the human right to fair trial--independence and impartiality. The examination of exceptional courts and their relationship with state repressive behavior is missing from existing literature. Utilizing texts of national constitutions and State Department Country Reports, I build a dataset on the constitutional treatment of exceptional courts and the de facto design and behavior of exceptional courts, and examine the relationship between a multitude of constitutional and institutional aspects of exceptional courts around the world and states’ coercive behavior. I argue that states use exceptional courts as a cost-lowering instrument of repression, through which they can punish or eliminate their opposition under a guise of legality. I also contend that state leaders are particularly reluctant to use violence against their people when their national constitutions provide for provisions prohibiting trials of human rights violations in exceptional courts, prohibiting derogation from fair trial rights during emergency situations, and providing for the right to appeal exceptional courts’ decisions in ordinary courts. Importantly, though, different regional experiences tend to shape the purposes these courts serve. I conclude with discussion of the implications my dissertation offer for the human rights experts in the Human Rights Council.