Justice in Times of Transition
by Mary Albon
Summary written by: Tanya Glaser, Conflict Research Consortium
Citation: "Project on Justice in Times of Transition: Report of the Project's Inaugural Meeting," in Transitional Justice, ed. Neil J. Kritz, (Washington, D.C.: United States Institute of Peace Press, 1995) pp. 42-54.
In recent times a number of totalitarian regimes have collapsed or been overthrown, and have been replaced by more democratic governments. These new governments are then faced with issues of transitional justice. Transitional justice refers to the new government's attempts to address injustices perpetrated under the old regime. New governments must decide how and to what extent past injustices should be acknowledged. They must also decide who should be held accountable for past injustices, or whether anyone should be held accountable.
In addition to issues of transitional justice, new democracies face a number of challenges. The new government often faces a situation where civil society is virtually absent, having been destroyed by years of repression. There may be little public understanding of democratic principles, such as the rule of law. The civilian government may be faced with a powerful and possibly antagonistic military, and with severe economic problems.
New democracies face three specific challenges in making a just transition from the old regime. The new government must decide what to do with members of the old ruling elite. They must decide what to do with lower-level officials in the old regime. And they must decide how to respond to public frustration with the speed or extent of transitional justice.
New democracies have three basic options open to them. They may ignore past injustices, granting amnesty and "starting fresh." They may attempt to uncover and punish all the crimes of the old regime. This is often not practically possible. Or they may selectively prosecute certain crimes, the particularly heinous or well-documented crimes, for example.
First, new governments may choose to acknowledge past injustices, or to forget them. Conference attendees gave three reasons for acknowledging past injustices. Acknowledging past abuses recognizes the dignity of the victims, and is the first step in seeking justice for them. Acknowledging past crimes is also the necessary first step toward national reconciliation. In addition, publicizing past crimes may serve to deter future crimes. Making restitution to the victims can be a particularly potent form of acknowledgment.
Many people oppose amnesty on the grounds that it deprives victims of their right to justice. However, many countries, such as Uruguay and Spain, have chosen to "forget" past crimes through general amnesty. Countries may grant general amnesty in order to avoid provoking rebellion from a still-powerful military, and to promote national reconciliation, as in Uruguay. When supporters of both the old regime and the new order have committed human rights abuses, a general amnesty for both sides may allow the nation to break from its past conflicts move forward. This has been the case in Spain.
If the new government chooses to acknowledge past crimes, it must next decide whether and how to hold the responsible parties accountable for those crimes. The main reason to prosecute past crimes is to punish criminals and dignify the victims. Prosecutions can also help to reunify society, and establish a common moral reality. Prosecution through legitimate channels may prevent outbreaks of vigilante justice.
The decision to prosecute is often influenced by the speed of the transition in governments. New governments are less likely to seek prosecution when the transition was gradual. One participant observed the degree of complicity with the repression was a significant factor in later decisions to seek prosecution, explaining that "those who resisted the least, both among countries and within countries, tend to be the most eager to prosecute."[p. 46] New governments may be motivated to prosecute former leaders in order to fix the blame for current problems firmly on those past leaders. The decision to prosecute past crimes may also depend on the capacity of the judicial system, and the extent to which it was corrupted by the old regime.
New governments also face legal problems in prosecuting past crimes. It may be difficult to maintain the legal presumption of innocence in the face of public demands for vengeance. They may be tempted to prosecute individuals for acts which, while immoral, were not illegal under the old regime. Prosecution may become a political tool, used selectively against political opponents. The new government will also need to decide where in the hierarchy of command to focus their attention. Who should be prosecuted: the person who gave the order or the subordinate who carried it out?
The cases of Hungary and Germany illustrate some of the legal difficulties in prosecuting old crimes. Hungary attempted to suspend the statute of limitations in order to prosecute crimes of murder and treason committed under the old regime. However, Hungary's constitutional court struck down the suspension, arguing that it was more important to preserve the basic principles of rule of law that to address past political injustice. Germany has generally not prosecuted abuses from the old East German regime. Many abuses were not illegal under East German law, and West Germany's constitution forbids retroactive criminal legislation.
Albon argues that the international community should pressure states to prosecute human rights violations. "The point of international human rights law is to oblige states to protect the rights of their citizens; if a state does not punish those who violate human rights...it is failing in its duties as a government." International support for such prosecutions may also help to empower new democracies to pursue such prosecutions.