Transitional Justice Péter Hack Eötvös University, Budapest

“A state under the rule of law cannot be created by undermining the rule of law.” 11/1992. (III. 5.) Ab. hat.

„transitional justice has to do with situations in which a previously authoritarian regime has given way to a democratic one, and the new democracy is faced with the problem of how to address the human rights abuses of its predecessor.„ Garett

“Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses.„ International Center for Transitional Justice (New York) ICTJ

Five waves of TJ (Elster) The twentieth century offered some thirty- odd cases of transitional justice, in five geographical and chronological clusters: 1. Western Europe and Japan after Southern Europe around 1975, 3. Latin America in the 1980s, 4. Eastern Europe after 1989, 5. Africa from 1979 to 1994.

Five waves 1. TJ after 1945 in Austria, Belgium, Denmark, France, Germany, Italy, Hungary, the Netherlands, and Norway. 2. In the mid 1970s, with the fall of the dictatorships in Portugal, Greece, and Spain. 3. A domino effect beginning in Poland and ending in Bulgaria, occurred in a number of ex-Communist countries after 1989.

Five waves 4. In Latin America, the 1980s saw transitions to democracy in Argentina, Bolivia, Brazil, Chile, and Uruguay. 5. On the African continent, the most important cases of transitional justice are those of Ethiopia, and South Africa.

Mode of transitions/Elster Broadly speaking, we may distinguish among three main types of transition to democracy: by negotiation between an outgoing and an incoming elite, by the military defeat of the autocratic regime, and by its implosion or collapse. (In addition, there is the unique Chilean case of uncoerced abdication from power.)

Mendez’s preconditions 1. Justice: prosecuting and convicting perpetrators of abuses and crimes. 2. Ensuring that victims are afforded the right to know the truth which includes allowing victims to unfold the details of the abuses still concealed and disclosing the full truth to victims, their relatives and the entire society. 3. Providing reparations to victims, taking into account their virtues and human dignity. Due economic compensation shall be an essential part of this obligation, but it includes other non-pecuniary measures as well, such as official recognition of the abuses or state apology. 4. The states shall also ensure that those officials having committed crimes as members of the armed forces and secret services are excluded from employment in the reorganized democratic police or security services.

ICTJ’s elements of TJ 1. Criminal prosecutions, particularly those that address perpetrators considered to be the most responsible.1. Criminal prosecutions 2. Reparations, through which governments recognize and take steps to address the harms suffered. Such initiatives often have material elements (such as cash payments or health services) as well as symbolic aspects (such as public apologies or day of remembrance).2. Reparations 3. Institutional reform of abusive state institutions such as armed forces, police and courts, to dismantle—by appropriate means—the structural machinery of abuses and prevent recurrence of serious human rights abuses and impunity.3. Institutional reform 4. Truth commissions or other means to investigate and report on systematic patterns of abuse, recommend changes and help understand the underlying causes of serious human rights violations.4. Truth commissions

Garett 1. “Amnesia Model” used by Spain after the fall off Franco regime 2. “Selective Punishment Model” which was implemented in Greece after the collapse of the military dictatorship in "The Historical Clarification Model” of Guatemala in the 1990-s, 4. “Mixed Memory and Punishment Model” of South Africa, the rightly famous Truth and Reconciliation Commissions

Justice/ Criminal Prosecution 1. Nurnberg/Tokyo 2. ICTY, ICTR 3. ICC

International Courts vs. Local Courts Possible solution: Hybrid Courts (Cambodia, Sierra Leone) Eastern Europe: -Causescu „Ttrial” vs. Mauerschützen Trials (Case of Krenz, Kessler, Streletz ) Saddam Hussein’s „Trial”

Huntington’s guidelines (a) If transition took place through revolution and it is sensible both politically and morally, it is expedient to prosecute leaders of the former regime right away (within one year after the transition) but making it explicit that leaders at middle and lower levels are not to be prosecuted; (b) If transition took place peacefully, through ‘transformation’ or ‘replacement’, it is sensible not to punish representatives of the oppressive regime for violating human rights, since its political price exceeds its moral benefits; (c) One shall recognize that each of the alternatives of ‘prosecuting and convicting’ versus ‘forgiving and forgetting’ raises major problems, but the least acceptable alternative is ‘not prosecuting, not convicting, not forgiving and in particular, not forgetting’.

1 st week ( ) Introduction. What do we mean by transitional justice, basic arguments. 2 nd week ( ) The first generation of transitional justice, the Nurnberg-trial, the problem of international criminal justice. 3 rd week ( ) International Criminal Tribunals (Ruanda, Former Yugoslavia) the ICC. 4 th week ( ) Transitional Justice in Europe (Spain, Portugal, Greece) 1.

5 th week ( ) Transitional Justice in Europe (Spain, Portugal, Greece) 2. 6 th week ( ) Transitional Justice in South America (Argentine, Chile, Guatemala). 7 th week ( ) South Africa, (the Truth and Reconciliation Commission). ? ( or 07) Visit to the Terror House Museum

8 th week ( ) East European Models (Poland, Check Republic, former East Germany) 9 th week ( ) East European Models (Poland, Check Republic, former East Germany) 10 th week ( ) The Hungarian Solutions: Volley Trials. Annulment Laws. 11 th week ( ) The Hungarian Solutions: Lustration Laws. Victim Reparation. Summary, and conclusions. 12 th week ( ) EXAM

Thank you!