The Dilemmas of Transitional Justice
By Neil J. Kritz
This Article Summary written by: Tanya Glaser, Conflict Research Consortium
Citation: Neil J. Kritz, "The Dilemmas of Transitional Justice," in Transitional Justice, Neil J. Kritz, ed. (Washington, D.C.: United States Institute of Peace Press, 1995) pp. xix-xxx.
Transitional justice deals with the problems faced by societies which are making the transition from repressive regimes to more democratic orders. Such societies face a number of dilemmas. The need to distinguish between the old regime and the new government presents a first dilemma. Dealing swiftly and severely with members of the old regime does sharply differentiate the new from the old. But it tends to undermine the democratic principles which should differentiate the two. "Victor's justice" is often short on due process. Adhering to democratic principles and the rule of law in dealing with the former regime upholds the new government's basic principles. But since the wheels of justice turn slowly, it may seem to leave the old regime unpunished, and injustices unaddressed. The new government will not seem to have brought much change.
The new government must decide whether to punish the leaders and henchmen of the old regime. Some argue that seeking justice and revealing the truth are the best ways to mark the society's new beginning. Others argue that general amnesty is the best way to rebuild and reconcile the state. The new order should let go of the past, and focus on the future. Deciding to prosecute members of the old regime can be complicated. The statutes of limitation may have expired on many crimes. Many of the "crimes" the new order wishes to punish were actually legal under the old regime. The new order must also decide who in the chain of command to prosecute; whether to prosecute the person who gave an order or the underling who executed it. Should prosecution be limited to violations of human rights, or extended to economic mismanagement? The new order must also decide what punishments are appropriate. Here again they are caught between calls for revenge, the need to distance themselves from the old regime, and the need to adhere to the new democratic principles.
Despite calls for amnesty, the new order cannot afford to ignore the past. If the new government does not publicize the misdeeds of the past, supporters of the old regime will deny, evade and revise accounts of their days in power. They may undermine the new government. The new order must also decide how to deal with the administrators, public officials and bureaucrats who served under the old regime. The new government may be tempted to purge members of the old regime from the public sector. The continued presence of the old bureaucrats could make it seem that the new government is merely following the old regime's "business as usual," and the old bureaucrats might in fact present obstacles to reform. On the other hand, those personnel may be the only ones with the knowledge needed to administer crucial public sector institutions. Purging the public sector may violate the democratic principles of justice which reject collective punishment, and demand the presumption of innocence.
The court system and judiciary can present a particularly acute dilemma. Commitment to the rule of law demands that the courts be protected from political pressures. And so it would seem inappropriate to replace old judges with new judges sympathetic to the new politics. Yet the courts have generally played a key role in implementing and legitimizing the policies of the repressive regimes. And so it would seem the judges are corrupt and must be removed.
The new government must decide whether and what compensation to give the victims of the former regime. Usually new governments are poor and their nations face weak economies. It may seem that funds, if available at all, are better spent on rebuilding the state's infrastructure. However, Kritz observes that compensation and restitution serve three important functions. "First, it aids the victim's to manage the material aspect of their loss. Second, it constitutes an official acknowledgment of their pain by the nation...Third, it may deter the state from future abuses, by imposing a financial cost to such misdeeds."[p. xxvii] International law increasingly acknowledges the state's obligation to provide restitution.
The elements of transitional justice, trials and truth commissions, restitution and rehabilitation are expensive in the short term. However, failing to deal adequately with such issues will be even more expensive in the long term. Some funding may be gotten from private or foreign sources. Others argue that the new government should bear the cost of compensation. It reinforces the lesson that misdeeds are costly. The new government may reclaim assets plundered by the former leaders. Kritz notes that "there is a certain sense of justice and balance to recapturing these ill-gotten gains and applying them directly to pay for other aspects of transitional justice."[p. xxix] When the new order is also moving from a centralized to a market economy, issues of restitution and redistribution take on additional importance and complexity.