Transitional Justice and the Rule of Law in New Democracies

Transitional Justice and the Rule of Law in New Democracies

Transitional Justice and the Rule of Law in New Democracies

Transitional Justice and the Rule of Law in New Democracies


This is the first focused study on the relationship between the use of national courts to pursue retrospective justice and the construction of viable democracies. Included in this interdisciplinary volume are fascinating, detailed essays on the experiences of eight countries: Argentina, Bolivia, Chile, Germany, Greece, Hungary, Poland, and South Africa. According to the contributors, the most important lesson for leaders of new democracies, who are wrestling with the human rights abuses of past dictatorships, is that they have many options.

Democratizing regimes are well-advised to be attentive to the significant political, ethical, and legal constraints that may limit their ability to achieve retribution for past wrongs. On prudential ground alone, some fledgling regimes will have no choice but to restrain their desire for punishment in the interest of political survival. However, it would be incorrect to think that all new democracies are therefore bereft of the political and legal resources needed to bring the perpetrators of egregious human rights violations to justice. In many instances, governments have overcome the obstacles before them and, by appealing to both national and international legal standards, have brought their former dictators to trial. When these judicial proceedings have been properly conducted and insulated from partisan political pressures, they have provided tangible evidence of the guiding principles -- equality, fairness, and the rule of law -- that are essential to the post-authoritarian order.

This collection shows that the quest for transitional justice has amounted to something more than merely a break with the past -- it constitutes a formative actwhich directly affects the quality and credibility of democratic institutions.


It is not surprising that new democracies have frequently become engulfed in controversy when they have sought to bring their former dictators to trial. Due to long-standing legacies of oppression and injustice, passions are deeply rooted, and the stakes of any decision are high for perpetrators and victims alike. Moreover, it says something about the uncertain legal terrain on which these regimes have acted over the last few decades that we are still far from reaching a consensus about either the utility or the advisability of using national courts as instruments to right the wrongs of the past.

On the one hand, it is easy to sympathize with the compelling arguments that have been made on moral grounds in support of accountability trials. A half century after the convening of the international tribunals at Nuremberg and Tokyo, the advocates of trials contend, states can no longer afford to be indifferent to the plight of the victims of despotic regimes. As Justice Robert Jackson elegantly stated in his oft-cited opening remarks for the prosecution at Nuremberg, "The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated." For the proponents of trials in new democracies, the situation is no different in the contemporary era. Those who have suffered unspeakable acts of torture and abuse, who have lost loved ones and associates, and who have had their lives torn apart by capricious and uncaring governments must be able to feel that their losses have been addressed and that their new leaders have taken seriously the . . .

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