Transitional justice
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 15 September 2021
• Course requirements
• What do we need to know about a transition?
• What is Transitional Justice?
Outline
• Exam and requirements:
• 2 position papers (1500 words long)
• Analytical
• Grounded in theory
• Feel free to state your position
• Debate
• Exam: written, open-ended questions
Course requirements
• When?
• Transition from what?
• How long does it last?
What is a Transition?
Theory of transition
Dankwart Rustow
1. national unity = statism
2. preparation = liberalisation
3. decisive phase = transition
4. habitation = consolidation
Przeworski
There is no unitary model
of transition or
consolidation
Democratization
Third Wave Transitions
Huntington Linz Share – Mainwaring
(1) Transformation = reforma = transaction
(2) Replacement = ruptura = breakdown/collapse
(3) Transplacement = ruptforma = extrication
What is Transitional Justice?
a set of judicial and non-judicial mechanisms (institutions, policies,
and practice) designed to deal with atrocities and large, almost
systematic violations of human rights in the process of transition,
aftermath, or anticipation of the fall of a past non-democratic regime
(Neil Kritz)
What is Transitional Justice?
Ruti Teitel: the view of justice associated with periods of political change, as reflected in the phenomenology of
primarily legal responses that deal with the wrongdoing of repressive predecessor regimes
Encyclopaedia of Genocide and Crimes Against Humanity: framework for confronting past abuse as a component of
a major political transformation. This generally involves a combination of complementary judicial and non-judicial
strategies
UN Secretary-General: the full range of processes and mechanisms associated with a society’s attempts to come to
terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve
reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels on international
involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and
dismissals, or a combination thereof.
What is Transitional Justice?
• it follows primarily political goals (although addresses also legal, historical and philosophical questions of justice)
• It aims to challenge the legitimacy of old structures and political practices and
•to facilitate a moral, political, and legal break from previous regime
•to establish and stabilize the democratic legitimacy of a new elite
•to lay ground for development of new civil society
•to deter future repetition of HR atrocities
Where is transitional justice happening?
Typically used by: new elites striving to come to terms with atrocities committed by the previous
regime.
• Postconflict societies
• Aiming for democratic transition
• Authoritarian postconflict societies with strong cleveages
• Other regime transitions recognising past regime’s crimes
• To democracy
• Away from democracy
• When is TJ happening?
• During transition
• In the aftermath of transition
• In the wake of the transition
Historical and legal roots
• 1992 Salzburg (Charter 77); Ruti Teitel and Neil Kritz
• Aeschylus’ drama The Oresteia: “The matter is too big for any mortal man who thinks he can judge it.… I shall
select judges of manslaughter, and swear them in, establish a court into all time to come…. I established this
tribunal. It shall be untouched by money-making, grave but quick to wrath, watchful to protect those who
sleep, a sentry on the land.”
• Ruti Teitel: Latin America
• John Elster – Closing the Books: historical examples, including WW2
Legal roots:
• Jus post bellum
• Jus ad bellum (UN Charter)
• Jus in bello (Hague and Geneva Conventions)
• Kantian imperative of punishment
• Deterrence and peacekeeping
Historical roots
Dilemmas of transitional justice
• Missing unified theory
• Truth v justice dilemma
• Peace v justice dilemma
• Democracy v justice dilemma
• Adjective transitional is misleading
• Winter and Hansen: any normative changes inside of a political system
• What law to apply?
• Whom to prosecute?
• Retroactivity?
Actors of transitional justice
• International – National
• International organisations
• UN
• International courts and tribunals
• TRCs
• states
• State – Non-state
• Governments
• Opposition (dissent, new elites)
• Judiciary (ordinary and constitutional courts)
• NGOs
• Civic society
• Church
Transitional Justice Mechanism
Transitional Justice
Brian Grodsky (2009)
Trends in transitional justice
• Internationalisation (externalisation) of TJ
• Increasing number of actors
• Increasing range of mechanism
• Smaller space for maneuvre for statespostoj vlád
TJ and international law
• first: domestic justice processes following regime transition
• now: globalizing movement of HR: new normative expectations
• Punish v forget dilemma
• Controversial stance on amnesties
1. Impunity 2. Accountability
De facto
De jure
Legal
Civil
Administrative
- forget - exil
- blanket/ general
amnesty
- National CP
- International CP
- International ad hoc
- International permanent
- Hyberid
- TRCs
- Reparations
- Funds
- Lustration
Factors influencing a type of TJ
AUTHOR VARIABLE1
FORMULA
Huntington Form of transition Harsh transition = harsh
prosecutions and lustration
Moran; Nedelsky Character of previous regime
and strength of opposition
The more repressive regime, the
more vindictive new elite
Welsh; Kornai –
Rose-Ackerman2
;
Nalepa3
Democratic and political
balance of power between
the elites; partisan struggles
Introduction of repressive
measures depends on a relative
strength of elites
Stan Partisan policy, time Transitional justice decision is
dependent on a combination of
several variables
Davis, Crocker4 External factors Strength of domestic variables
is diminished in transitional
processes and EU and CoE
conditionality
Factors influencing TJ decisions
• vlád
Thank you for your
attention
Katarína Šipulová
katarina.sipulova@law.muni.cz
Masaryk University