Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past

Luc Huyse

doi:10.1111/j.1747-4469.1995.tb00682.x

1 Political science publications on regime change often disregard the problem of transitional justice. That is true for, among others, such well-known work as Juan Linz & Alfred Stepan, eds., The Breakdown of Democratic Regimes (Baltimore: Johns Hopkins University Press, 1978). Guillemo O'Donnell, Phillip Schmitter, & Laurence Whitehead, eds., Transitions from Authoritarian Rule: Prospects fur Democracy (Baltimore: Johns Hopkins University Press, 1986, has a few, but quite insightful, pages on “settling a past account.” An exception is Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991) (“Huntington, Third Wave”). There is a vast sociolegal literature on the interlocking of politics and courts, but it almost never deals with the role of the judicial system in regime transitions. Two exceptions: Otto Kirchheimer, Political justice: The Use of Legal Procedure for Political Ends (Princeton, N.J.: Princeton University Press, 1961), and H. & E. Hannover, Politische Justiz (Frankfurt: Fischer Verlag, 1966).Google Scholar

2 The distinction between acknowledgment and accountability was made at the Salzburg meeting (7–10 March 1992) of the Charter 77 Foundation's Project on Justice in Times of Transition. For more on the Project on Justice see note 9.Google Scholar

3 Amnesty, granted by the executive or the legislature, removes the punishability of certain acts; amnesty thus abrogates crime and punishment; it can be used to foreclose prosecutions but also to cancel the sanctions already imposed. Pardon is, according to Black's Law dictionary, an “executive action that mitigates or sets aside punishment for a crime.” The dictionary adds: “The distinction between amnesty and pardon is one rather of philological interest than of legal importance.” Impunity (or immunity) is a de facto situation that is the result of amnesty or pardon. I use here the terms “amnesty,”“pardon,”“impunity,” and “immunity” as synonyms.Google Scholar

4 Post-1983 Argentina is a rare exception. After the report of the National Commission on the Disappeared was released, the chiefs of the three successive juntas were brought to trial.Google Scholar

5 Cited in Lawrence Weschler, A Miracle, a Universe: Settling Accounts with Torturers 4 (New York: Pantheon Books, 1990) (“Weschler, Miracle”).Google Scholar

6 Lloyd Vogelman, “It's Hard to Forgive—Even Harder to Forget,”Work in Progress, Aug. 1993, at 16.Google Scholar

7 In the literature, multiple terms are used synonymously to label the activities through which justice after transition is performed: backward-looking or retrospective justice, retroactive or ex post facto justice, retributive justice. post-authoritarian justice, transitional justice. Some of these terms are equivocal, among them “backward-looking” or “retrospective” justice. As an anonymous referee noted, justice is always meted out after a crime. Thus these terms are not specific enough. The problem with the labels “retroactive” or “ex post facto justice” is that they refer to a very special type of justice: one that does not respect the principle of nonretroactivity. Not all criminal prosecutions following the demise of an authoritarian regime violate that rule. “Retributive justice” is justice with the aim to give (mostly material) retribution to the victims of the old regime. This term has a very circumscribed meaning and should not be pressed into service for a grander purpose. I prefer the labels post-transition justice and justice after transition, because these descriptive phrases are at the same time broad and specific. I use these two terms synonymously, together with the more general term purge. Other appropriate phrases are post-authoritarian justice or post-totalitarian justice. Google Scholar

8 The choice of the two groups is based on a mixture of theoretical and practical considerations. Both groups of countries differ considerably in their dealing with the crimes of the previous regime and with respect to the legacy of the past, the presence of an supranational legal order, and the balance of power between old and new elites. As a consequence, a comparative approach seems appropriate. Belgium, France, and The Netherlands have been singled out since information on purges in other occupied countries is scarcer or less accessible because of language barriers. The selection of Czechoslovakia, Hungary, and Poland is prompted by the fact that these countries have much in common in the area of post-transition justice (East Germany being in a class by itself) and because information on these countries is more available than it is for Albania, Bulgaria, or Romania. Here and throughout, references to “Czechoslovakia” are intended to cover the period from late 1989 until the formal separation of that country into two nations on 31 December 1993.Google Scholar

9 The Project on Justice in Times of Transition (sponsored by the Foundation for a Civil Society—formerly the Charter 77 Foundation) has initiated discussions between political leaders, judges, journalists, and academics. So far five meetings have been held: an inaugural meeting in Salzburg, 7–10 March 1992; Budapest, 30 at. Oct-1 Nov. 1992, on truth and justice: the delicate balance; San salvador, 11–12 Jan. 1993, on reconciliation in times of transition; Venice, 14–15 Nov. 1993, on disqualification measures in Eastern and Central Europe and the former Soviet Union; and Cape Town, 25–27 Feb. 1994, on truth and reconciliation in South Africa).Google Scholar

10 A. Boraine, J. Levy, & R. Scheffer, eds., Dealing with the Past: Truth and Reconciliation in South Africa (Cape Town: IDASA, 1994) (“Boraine, Dealing”), is a very useful summary of the political and academic debate. See also Huntington, Third Wave 211–32 (cited in note 1).Google Scholar

11 According to Huntington, Third Wave 213, this is one of the main arguments of those in favor of prosecution. See also Aryeh Neier, former executive director of Human Rights Watch: “As a civilised society we must recognise the worth and dignity of those victimized by abuses of the past.” Cited in Boraine, Dealing 3 (“Neier, in Dealing”).Google Scholar

12 That is exactly what the term lustration, according to The Oxford Concise Dictionary, evokes: “purification by expiatory sacrifice, ceremonial washing.”Google Scholar

13 Fuchs, cited by Adam Michnik, “Justice or Revenge?” 4 J. Democracy 20, 25 (Jan. 1993).CrossRef Google Scholar

14 Henri Rousso, Le syndrome de Vichy de 1944 à nos jours (Paris: Seuil, 1990) (“Rousso, Syndrome”). The uneasiness was revived when in June 1993 Rene Bouquet, the French secretary general of police under the Vichy regime, was murdered by a psychotic. Many felt that the killing of Bousquet, whose expected trial might at last have brought the wartime state before the courts, was “justice denied.” Rumors of the reluctance at the highest level to effectively put the Vichy regime on trial were amplified. See “Le dossier Bouquet,”Libération (Special Issue), 13 July 1993, at 1–52.Google Scholar

15 Vaclav Benda, an active dissident under the communist regime and in 1992 chairman of the Christian Democratic Party, described the main aim behind the Czechoslovak Screening Act as “self-protection considered from the viewpoint of Czechoslovak democracy and from the viewpoint of the evolution towards a market economy and a state of law.” Interview, 5 East Eur. Rep. 42, 42 (March-April 1992).Google Scholar

16 See Janusz Obrman, “Laying the Ghosts of the Past,”Rep. E. Eur., 14 June 1991, at 12.Google Scholar

17 Huntington, Third Wave 213. According to Juan Mendez, general counsel of Human Rights Watch, “The ability of institutions to deal with such difficult and touchy subjects will instill confidence in the citizenry about the country's capacity to build reliable and trustworthy democratic institutions.” Cited in Boraine, Dealing 92.Google Scholar

18 A complicating factor was that many collaborators belonged to political movements (VNV in Flanders, REX in Francophone Belgium) that had won between 15% and 20% of the parliamentary seats in the prewar national elections of 1936 and 1939. These movements had thus long been redoubtable competitors for power. See William Brustein, “The Political Geography of Belgian Fascism: The Case of Rexism,” 53 Am. Soc. Rev. 69 (1988).CrossRef Google Scholar

19 See Geoffry Warner, La crise politique belge de novembre 1944: Un coup d'état manquéé (Brussels: CRISP, 1978).CrossRef Google Scholar

20 Claus Offe, “Corning to Terms with Past Injustices,” 33 Arch. Eur. SOC. 195 (1992).CrossRef Google Scholar

21 Laurence Whitehead, “The Consolidation of Fragile Democracies: A Discussion with Illustrations,” in Robert Pastor, ed., Democracy in the Americas: Stopping the Pendulum 84 (New York: Holmes & Meier, 1989).Google Scholar

22 The term Rechtstaat is used to refer to a constitutional state or one based on rule of law principles.Google Scholar

23 Diane Orentlicher writes: “The fulcrum of the case for criminal punishment is that it is the most effective insurance against future repression. By laying bare the truth about violations of the past and condemning them, prosecutions can deter potential lawbreakers and inoculate the public against future temptation to be complicit in state-sponsored violence.” See her “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” 100 Yale L.J. 2537, 2542 (1991).Google Scholar

24 Ralf Dahrendorf, Reflections on the Revolution in Europe 101 (London: Chatto & Windus, 1990).Google Scholar

25 Jorge Semprun, cited by Michnik, 4 J. Democracy at 24 (cited in note 13).Google Scholar

26 Raoul Alfonsh, “‘Never Again’ in Argentina,” 4 J. Democracy 15, 19 (Jan. 1993).CrossRef Google Scholar

27 While generally in favor of tolerance in the handling of past abuses, most participants in the debate agree that two exceptions must be made. The first is that self-amnesties are illegitimate. Second, states have the duty to prosecute violations of international law relating to human rights. Such crimes, it is argued, cannot be unilaterally forgiven. Jose Zalaquett, a member of the Chilean Truth Commission, has said: “society cannot forgive crimes against humanity. The perpetrators must be brought to trial.”Venice conference report, at 15 (cited in note 9). The idea that crimes against humanity must always be prosecuted is also behind the trial of Paul Touvier, a French collaborator who in 1994 was brought before a criminal court, 50 years after the end of the war. See Le Monde (Special Issue), 17 March 1994, and, in this issue, Leila Sadat Wexler, “Reflections on the Trial of Vichy Collaborator Paul Touvier for Crimes against Humanity in France,” 20 Law & Soc. Inquiry 191 (1995).CrossRef Google Scholar

28 The South African case proves that a similar discussion arises when offenses of a much more serious nature (assault, robbery, public violence, etc.) are labeled by some as political. When the question of the release of political prisoners emerged on the agenda of the negotiations between the De Klerk government and its negotiating partners, a key issue was the distinction between offenses that are political and those that are not. For a general discussion, see Raylene Keightley, “Political Offences and Indemnity in South Africa,” 9 S. Afr. J. Hum. Res. 334 (1993).CrossRef Google Scholar

29 De Menthon, cited in Peter Novick, The Resistance versus Vichy: The Purge of collaborators in Liberated France 150 (New York: Columbia University Press, 1968) (“Novick, Resistance versus Vichy”).Google Scholar

30 Richard L. Abel & Philip S. C. Lewis, “Putting Law Back into the Sociology of Lawyers,”in Abel & Lewis, eds., Lawyers in Society, vol. 3: Comparative Theories 478, 482 (Berkeley: University of California Press, 1989).Google Scholar

31 Offe, 33 Arch. Eur. SOC. at 197 (cited in note 20).Google Scholar

32 This principle of legality means that no conduct may be held punishable unless it is precisely described in a penal law, and no penal sanction may be imposed except in pursuance of a law that describes it prior to the commission of the offense. See also European Convention of Human Rights art. 7(1): “No one shall be held guilty of any criminal offence on account of any act or ommission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”Google Scholar

33 Offe, 33 Arch. Eur. Soc. at 197.Google Scholar

34 Novick, in Resistance versus Vichy 140–56 (on the purge of collaborators in liberated France), devotes an entire chapter to the nullum crimen sine lege problem.Google Scholar

35 Tina Rosenberg, cited in Boraine, Dealing 95 (cited in note 10) (“Rosenberg, in Dealing”).Google Scholar

36 Offe, 33 Arch. Eur. SOC. ac 199. Political surveillance, for example, is not an illegal act in repressive regimes and to, in the context of transitional justice, make criminal charges against such behavior will prove to be difficult.Google Scholar

37 Id. at 195–96.Google Scholar

38 Erhard Blankenburg, “The Purge of Lawyers after the Breakdown of the East German Communist Regime,” 20 Law & Soc. Inquiry 223 (1995).CrossRef Google Scholar

39 Novick, Resistance versus Vichy 209.Google Scholar

40 See A. Dombach (Speaker of the House in the Hungarian Parliament) as cited in “Retroactivity Law Overturned in Hungary,” 1 East Eur. Const. Rev. 8 (Spring 1992).Google Scholar

41 Havel, cited in Huntington, Third Wave 214 (cited in note 1).Google Scholar

42 Aleksander Kwasniewski (chairman of the Parliamentary Club of the Alliance of the Democratic Left), 5 East Eur. Rep. 48 (March-April 1992). The expression “having been born in 1989“is close to the name given the Dutch “resistants of the eleventh hour” (those who very belatedly, mostly in May 1945, became patriots). They were, in the months following the war's end, mockingly called “maybeetles.”Google Scholar

43 Offe, 33 Arch. Eur. Soc. at 199.Google Scholar

44 See Huntington, Third Wave 214. Huntington also quotes President Sanguinetti of Uruguay: “What is more just—to consolidate the peace of a country where human rights are guaranteed today or to seek retroactive justice that could compromise that peace?” See also Jamal Benomar, “Justice after Transitions,” 4 J. Democracy 3, 14 (Jan. 1993). Talking of the lustration project in his country, Vaclav Havel warns that it “is a time bomb that could go off at any moment and ruin the social climate.” Havel, “Justice or Revenge?” 4 1. Democracy 20, 22 (Jan. 1993).CrossRef Google Scholar

45 Orentlicher, 100 Yale L.J. at 2545 (cited in note 23).Google Scholar

46 For a discussion of the dilemma as it presented itself in Latin America and Southern Europe, see Guillermo O'Donnell & Phillipe Schmitter, Tentative Conclusions about Uncertain Democracies 28–32 (Baltimore: Johns Hopkins University Press, 1986) (“O'Donnell & Schmitter, Tentative Conclusions”). The next continent where the problem will manifest itself is Africa. South Africa and Ethiopia, among others, must decide how to settle a past account without upsetting a present transition. (On South Africa, see in this issue Lynn Berat & Yossi Shain, “Retribution or Truth Telling in South Africa? Legacies of the Transitional Phase,” 20 Law & Soc. Inquiry 163 (1995).) A general introduction to this issue can be found in Ali Mazrui, “Conflict Resolution and Social Justice in the Africa of Tomorrow: In Search of New Institutions,” 127–128 Présence Africaine 308–28 (1983), and id., “Towards Containing Conflict in Africa: Methods, Mechanisms and Values” (presented at Organization of African Unity workshop on conflict management in Africa, Addis Ababa, May 1993) (“Mazrui, ‘Towards Containing Conflict’”).CrossRef Google Scholar

47 Rosenberg, in Dealing 66 (cited in note 35).Google Scholar

48 See Uruguayan President Sanguinetti's justification of an amnesty law pardoning abuses of a previous military regime: “The Uruguayan government has decided to take measures of magnanimity or clemency using a mechanism provided for in the Constitution of the Republic. The 12 years of dictatorship have left scars which will need a long time to heal and it is good to begin to do so. The country needs reconciliation to face a difficult but promising future” (cited by Orentlicher, 100 Yale L.J. 2545). The same argument has been used by South African President Mandela in defense of his amnesty proposals.Google Scholar

49 Offe, 33 Arch. Eur. SOC. at 198. Offe also noted that East Germany is special in this regard “as it can afford the replacement of large numbers of former officials and professionals given the supply of such personnel of at least equal skills that can be imported from the West.”Google Scholar

50 Cited in Veneta Yankova, “Democracy's First Steps,” 5 East Em. Rep. 44, 44 (1992). Yankova, a Bulgarian journalist, adds, “those demanding purification of public life have no idea of the social cataclysm they might be provoking.”Google Scholar

51 Louisa Vinton, “Walesa and the Collaboration Issue,” 2 RFE/RL Res. Rep., 5 Feb. 1993, ac 10, 16.Google Scholar

52 Pavel Dostal, “Are They Colour-blind?” 5 East Eur. Rep. 43, 43 (March. Apri1 1992).Google Scholar

53 O'Donnell & Schmitter, Tentative Conclusions 30.Google Scholar

54 Zalaquett in Boraine, Dealing 14–15 (cited in note 10).Google Scholar

55 Weschler in id. at 58.Google Scholar

56 See Rosenberg in id. at 66–67: “If the victims in a society do not feel that their suffering has been acknowledged, then they … are not ready to put the past behind them. If they know that the horrible crimes carried out in secret will always remain buried, … then they are not ready for reconciliation.” She adds: “The kind of reconciliation that lets bygones be bygones is not true reconciliation. It is reconciliation at gunpoint and should not be confused with the real thing.”Google Scholar

57 Successor elites have demonstrated the tendency to emphasize the political costs of criminal prosecutions. Juan Mendez (in id. at 91), general counsel of Human Rights Watch, has criticized this inclination for its defeatism: “While we have to recognise the political limitations to prosecutions, we must also not take them for granted. We should not provide a way out for successor democratic governments and should not simply assume that they are inherently powerless.” Rosenberg (id. at 68) warns us that the “desire for maintaining short-term equilibrium can have great long-term costs. It can damage the legal system, the rule of law and future civilian control of security forces.”Google Scholar

58 Novick, Resistance versus Vichy 140 (cited in note 29).Google Scholar

59 “Partisan trials … proceed according to a fully political agenda with only a façade of legality (although the legalism might be turgid.” Ron Christenson, Political Trials: Gordian Knots in the Law 10–11 (New Brunswick, N.J.: Transaction Books, 1986). For a description of the partisan aspects of post-transition justice in Belgium, see Luc Huyse & Steven Dhondt, La répression des collaborations 1942–1952: Un passé toujours présent (Brussels: CRISP, 1993) (“Huyse & Dhondt, La répression”).Google Scholar

60 Data on postwar purges in Belgium are based on Huyse & Dhondt, La répression. Important publications on France are Novick, Resistance versus Vichy (cited in note 29), and Rousso, Syndrome (cited in note 14). For Holland see Gerhard Hirschfeld, Nazi Rule and Dutch Collaboration: The Netherlands and German Occupation, 1940–1945 (Oxford: Berg, 1988); A. Belinfante, In plaats van bijltjesdag: De geschiedenis van de Bijzondere Rechtspleging na de Tweede Wereldoorlog (The History of the Purge in Postwar Holland) (Assen: Van Gorcum, 1978) (“Belinfante, In plaats van bijltjesdag”); and Peter Romijn, Snel, steng en rechtvaardig. Politiek beleid inzake de bestraffing en reclassering van ‘foute’ NederLanders, 19451955 (Swift, Severe and Fair Justice: The Problem of Collaboration and Collaborators in Dutch Politics, 1945–1955) (Amsterdam: De Haan. 1989). For a more general overview of lustration after World War II, see Klaus-Dietmar Henke & Hans Woller, eds., Politische Säuberung in Europa: Die Abrechnung mit Faschismus und Kollaboration nach dem Zweiten Weltkrieg (München: Deutscher Taschenbuch Verlag, 1991). Literature on backward-looking justice in postcommunist Eastern and Central Europe is scarce. Articles have appeared in Eastern European Constitutional Review, in Journal of Democracy, in East European Reporter, in East European Politics & Societies, in Eastern Europe Newsletter, in Carolina, Students' E-mail News from the Czech Republic, and in Report on Eastern Europe (since Jan. 1992 RFE/RL Research Report; both are publications of Radio Free Europe and Radio Liberty).Google Scholar

61 For the purge of former communists, the picture of post-totalitarian Europe would look considerably different if East Germany were included. There, large numbers of supporters of the old regime have been removed from the civil service, the judiciary, the bar and the universities. But, as noted in our introductory remarks, East Germany requires a special approach. There are, on the other hand, good reasons to distinguish between Belgium, France, and The Netherlands. Although their policies in handling collaborators diverged in more than one aspect, the many similarities allow us to treat them as belonging to a single category.Google Scholar

62 France had a much higher number of extrajudicial killings: some 9,000 men and women were executed outside the legal process. The parallel figures for Belgium and The Netherlands are about 35 and 30.Google Scholar

63 Novick, Resistance versus Vichy 211 (cited in note 29).Google Scholar

64 See 3 East Eur. Const. Rev. 10–11 (Spring 1994).Google Scholar

65 Cited in Edith Okay, “Hungary Attempts to Deal with Its Past,” 2 RFEIRL Res. Rep., 30 April 1993, at 6, 7.Google Scholar

66 Jiri Pehe, “Parliament Passes Law on Vetting Officials,”Rep. E. Eur., 25 Oct. 1991, at 4.Google Scholar

67 Benda, interview, East Eur. Rep. (cited in note 15).Google Scholar

68 Novick, Resistance versus Vichy 143.Google Scholar

69 These infringements were particularly numerous in the case of The Netherlands. See Belinfante, In plaas van bijltjesdag 105–8 (cited in note 60).Google Scholar

70 In May 1944, three months before the Liberation, the Belgian government in exile decided to revoke its decision to include members of the resistance in the military courts. It did so after vigorous protests by the auditeur-général (the magistrate in charge of the military court system).Google Scholar

71 See the Professional Opinion, prepared for the Prime Minister by six professors of brand Eötvös University's Law Faculty (document sent to the office of the Prime Minister on 12 Aug. 1991 and presented at a Prague Conference on Restitution and Retribution, Dec. 1991).Google Scholar

72 See interview with Laszlo Solyom, president of the constitutional court, in East Eur. Rep., March-April 1992. Confronted with the objection that the court's decision did not take account of justice for the masses, Solyom responded: “Taking into account the public mood is a political task, not one for the Constitutional Court.”Google Scholar

73 See 3 East Eur. Const. Rev. 10 (Spring 1994).Google Scholar

74 Pauline Bren, “Lustration in the Czech and Slovak Republics,” 2 RFEIRL Res. Rep. 16, at 17. See also Jiri Pehe, “Toward the Rule of Law: Czechoslovakia,” 1 RFE/RL Res. Rep., 3 July 1992, at 10.Google Scholar

75 For a general discussion of the reliability of state security files in judging prior regimes, see the report of the 30 at. Oct-1 Nov. 1992 Budapest meeting (cited in note 9). The Kafka-like dimensions of lustration based on state security files are well described in Lawrence Weschler, “The Velvet Purge: The Trials of Jan Kavan,”New Yorker, 19 Oct. 1992, at 66–96.Google Scholar

76 There are, outside this list of three, other factors that can be of considerable importance. The way a community deals with a repressive past is intimately linked with some of its more general mores and customs. One of these relates to the structure and content of the collective memory. A society can demonstrate a sort of natural inclination to forgive and forget the injustice inflicted on it in the past by domestic or foreign forces. In other instances societies have displayed a strong aversion to letting bygones be bygones. African countries are said to belong to the first category. In his analysis of the transitions in Kenya, Zimbabwe, and South Africa, Mazrui writes that the memory of hate of Africans is remarkably short (Mazrui, “Towards Containing Conflict” (cited in note 46)). European groups seem to have longer memories of bad times. The former Yugoslavia is only one, be it powerful, demonstration. Policy choices also depend on the origin of politically based crimes under earlier regimes. Sometimes, gross violations of human rights have been committed not only by the leaders of the repressive order but by its opponents too. If that is true, the successor elites may be ready to accept some form of (negotiated) amnesty for both sides or they may restrict their explorations of the past to the establishment of a truth commission. These two factors—the length of the memory of hate and the origin of human rights abuses—have a very limited value for our study of postwar Belgium, France, The Netherlands, and the three postcommunist countries. But as soon as one extends the comparative analysis of transitional justice to Latin America or Africa, these elements become very relevant.Google Scholar

77 Hungary and Czechoslovakia could be called, in some ways and during some periods, occupied countries, as was true after the 1956 Soviet invasion of Hungary and the 1968 invasion of Czechoslovakia by the Warsaw Pact armies.Google Scholar

78 Offe, 33 Arch. EUT. Soc. at 197 (cited in note 20).Google Scholar

79 Neier in Dealing 4 (cited in note 11).Google Scholar

80 Wartime France is a case apart. Its Vichy regime belongs to the category of state collaborations. This may partially explain why post-transitional justice in France has been relatively less extensive than in Belgium and Holland.Google Scholar

81 Wiktor Osiatynski in Boraine, Dealing 60.Google Scholar

82 See Henri Rousso, “Säuberungen gestem und heute” (Lustration Yesterday and Today) Transit. Eur. Rev. 187, 188 (1991).Google Scholar

83 I am indebted to an anonymous referee for this argument.Google Scholar

84 For a general introduction to the role of international organizations in transitions to democracy, see the Journal of Democracy's special issue on the subject (vol. 4, no. 3, 1993).CrossRef Google Scholar

85 Bren, RFE/RL Res. Rep. at 21 (cited in note 74).Google Scholar

86 See Andrzy Rzeplinski, “A Lesser Evil?” 1 East Eur. Const. Rev. 33, 33 (Fall 1992).Google Scholar

87 In the postcommunist countries, international supervision of transitional justice leads to procedural guarantees for those who are subjected to prosecution and lustration. In other circumstances, such as in transitions to democracy in Latin America and in Africa, the international legal environment can also ensure that grave violations of human rights do not remain unchallenged. Various ways are open here. One is illustrated by the U.S. Torture Victim Protection Act, in which national legislation offers victims of oppressive regimes the legal right to sue their torturers for civil damages before U.S. courts. For a discussion of this development see Robert F. Drinan & Teresa T. Kuo. “Putting the World's Oppressors on Trial: The Torture Victim Protection Act,” 15 Hum. Rts. Q. 605 (1993). A second opportunity lies in international law requiring punishment of human rights crimes. Both the Genocide Convention and the Torture Convention are examples of such transnational legislation. Orentlicher, 100 Yale L.J. at 2549 (cited in note 22), writes that mobilization of international law in dealing with the past has two advantages: it can provide a counterweight to pressure from the elites of the previous order seeking impunity and, further, “when prosecutions are undertaken pursuant to international law, they are less likely to be perceived—and opposed—as political revanchism.” Such supranational legal obligations can be implemented by domestic or international tribunals. In some cases only the latter procedure can guarantee that “justice be done.” That is precisely the reason why the U.N. Security Council has created the International Criminal Tribunal for the former Yugoslavia and intends to amend the statute of this tribunal so that it can consider crimes under international law committed during the armed conflict in Rwanda.Google Scholar

88 Huntington, Third Wave 114 (cited in note 1).Google Scholar

89 Id. at 124.Google Scholar

90 David Rustow, “The Surging Tide of Democracy,” 3 J. Democracy 119, 119 (Jan. 1993).CrossRef Google Scholar

91 Kadar Asmal, “Coping with the Past,”Mayibuye, Feb. 1994, at 27.Google Scholar

92 Rousso, Syndrome (cited in note 14).Google Scholar

93 Zalaquett in Boraine, Dealing 103 (cited in note 10).Google Scholar

94 Vojtech Cepl (professor of law at Charles University in Prague), “Ritual Sacrifices,” 1 East Eur. Const. Reu. 24, 25 (Spring 1992).Google Scholar

95 Roger Errera. “Dilemmas of justice.” 1 East Eur. Const. Rev. 21, 22 (Summer 1992).Google Scholar

96 Weschler, Miracle 245–46 (cited in note 5). For a general discussion of truth commissions, see Priscilla Hayner, “Fifteen Truth Commissions—1974 to 1994: A Comparative Study,” 16 Hum. Rgts. Q. 597 (1994).CrossRef Google Scholar

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Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past

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