Transitional Justice is a legal approach to establishing a society´s transition from an authoritarian regime that systematically violated human rights to a democratic regime respectful of human rights. Jurists and political analysts observe that the various forms of this approach are often flawed in their ability to provide justice in the strictest meaning of the term. Many of the same observers also maintain that although transitional justice is imperfect, it is a necessary political attempt to negotiate between a duty to the past and a duty to the future.
Traditionally, in an authoritarian state there is an opposition group that promises to do away with human rights abuses, and provide social justice. When this opposition group gains the favor of the masses and topples the regime it is then required to fulfill this pledge. That is the point in time where many theorists believe the new regime must show it is honoring its obligations and duty to the past, therefore, it must negotiate between justice and political needs. Some measures prove more successful than others, but all become necessary to some extent or another to legitimize the new regime.
National Criminal Trials
The 1988 decision of the Inter-American Court of Human Rights in the case of Velasquez Rodriguez versus Honduras outlines the modern legal basis for national trials. In its ruling, the Court confirmed that all states have basic legal obligations. They must take reasonable steps to prevent human rights violations; conduct a serious investigation of violations when they occur; impose suitable sanctions on those responsible for violations; and ensure reparations for victims of those violations. These national obligations have been affirmed in the decisions of the European Court of Human Rights, UN treaty body decisions, and by the International Criminal Court.
Theorists believe that in most circumstances arising out of a radical transition trials are carried out not only for the sake of justice, but also for the political need to manage the past. As an example, in the cases regarding the border shootings between East and West Berlin in Germany during the Cold War, these were grave criminal acts that needed to be punished. However, Mr. Honecker, who was leader of the GDR (communist East Germany) for many years and designed these criminal policies, did not face trial for political reasons. Lesser actors, like members of the security services or military, were not prosecuted to a great extent. The few trials of lower level actors that followed the reunification of Germany were not just about bringing criminals to justice, they were a political message saying that the new regime is different and will not tolerate such practices. Many analysts consider that they were limited to what was needed to condemn the previous regime and not meant to entirely fulfill justice requirements.
Lustration Laws
Many transitional governments in post-communist Eastern Europe created what they termed “Lustration Laws”. In essence, a lustration law is a special public employment law that regulates the process of examining whether a person holding certain higher public positions worked or collaborated with the “repressive apparatus” of the previous regime. This is a bar on individuals who were found to be collaborators with the previous regime and they were not allowed to hold a government job or official position. Some observers asked the question: what about their rights to freely choose employment; or even the democratic principle that if the people vote for them then they should hold a position? Experts concerned with these issues then proposed the answer that these laws were based on the politics of making sure that the old regime could not regain power and to prove to the people that the system really had changed.
Truth and Reconciliation
The Truth and Reconciliation Commission of South Africa presented the international legal and political communities with a very different approach. It did not attempt to deal with the past in a strict legal sense; it did so through engaging in a national discourse. Instead of purely legal mechanisms like criminal trials or lustration laws, South Africans opted to hold hearings were victims could express themselves and confront their abusers without liability on either side. Legal experts worried that without criminal accountability or redress for the victims there was no real justice. This national discourse, however, was still seen as a legitimate way of dealing with the past; and it did work towards a new political stability in the country.
The Means to an End
A significant number of jurists and political analysts view these methods as legitimate mechanisms for trying to seek justice after a radical transition; even though they are not always successful at providing justice in the strictest sense, and do not entirely address the past but rather secure the future. They are considered to be honest attempts to show change, to reassure and comfort society, to prevent the same regime from taking power again, and to enshrine a national memory. For many observers, this view of transitional justice demonstrates that seeking justice while dealing with an authoritarian past can be more a means and not an end in itself.
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