CHAPTER TWO
Criminal Justice

In the public imagination, transitional justice is commonly linked with punishment and the trials of ancien régimes. The enduring symbols of the English and French Revolutions from monarchic to republican rule are the trials of Kings Charles I and Louis XVI. A half century after the events, the leading monument to the Nazis' World War II defeat remains the Nuremberg trials. The triumph of democracy over military rule in Southern Europe's transitions is represented in Greece's trials of its colonels. Argentina's junta trial marked the end of decades of repressive rule throughout Latin America. The contemporary wave of transitions from military rule, throughout Latin America and Africa, as well as from Communist rule in Central Europe and the former Soviet bloc, has revived the debate over whether to punish.

Punishment dominates our understandings of transitional justice. This harshest form of law is emblematic of accountability and the rule of law; yet, its impact far transcends its incidence. Review of transitional periods reveals that successor criminal justice raises profoundly agonizing questions for the affected societies, so that its exercise is often eschewed. The debate over transitional criminal justice is marked by profound dilemmas: Whether to punish or to amnesty? Whether punishment is a backward-looking exercise in retribution or an expression of the renewal of the rule of law? Who properly bears responsibility for past repression? To what extent is responsibility for repression appropriate to the individual, as opposed to the collective, the regime, and even the entire society?

The central dilemma intrinsic to transition is how to move from illiberal rule and to what extent this shift is guided by conventional notions of the rule of law and individual responsibility associated with established democracies. A core tension emerges here in the use of law to advance transformation, as opposed to its role in adherence to conventional legality. To what extent is transitional criminal justice conceptualized and adjudicated as extraordinary in the relevant societies or guided by the ordinary rule of law of established democra-

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Transitional Justice
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents xi
  • Introduction 3
  • Chapter One - the Rule of Law in Transition 11
  • Chapter Two - Criminal Justice 27
  • Chapter Three - Historical Justice 69
  • Chapter Four - Reparatory Justice 119
  • Chapter Five - Administrative Justice 149
  • Chapter Six - Constitutional Justice 191
  • Chapter Seven - Toward a Theory of Transitional Justice 213
  • Epilogue 229
  • Notes 231
  • Index 285
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