Transitional justice, a movement devoted to bringing accountability to departed political regimes, has been the engine of the international human rights community in the past four decades. But while much has been said about how transitional justice enables successful democratic transitions, some of the movement’s legacy is more checkered—from endangering such transitions to rekindling old feuds and undermining the rule of law. Acknowledging this seldom discussed darker side of transitional justice is not an argument against holding an old regime to account for its actions, but rather a recognition of the limits of what justice can do to advance democratization.
“Caution is necessary, given the unintended consequences for democracy and the rule of law that can ensue from holding an old regime to account.”
It has been four decades since the curtain fell on the military dictatorship responsible for the harrowing nightmare known around the world as the “Dirty War.” According to the National Commission on the Disappearance of Persons, better known by the Spanish acronym CONADEP, some 10,000 people disappeared in Argentina between 1976 and 1983, most of them snatched from their homes or places of work and taken to military installations where they were raped, tortured, and murdered. Among the disappeared were children born to pregnant women in captivity who were kept alive long enough for them to deliver their babies, subsequently given to right-wing parents to raise. Many of the victims’ remains were dumped from airplanes into the Atlantic Ocean in so-called vuelos de la muerte, or death flights. By disposing of the dead in this way, the military regime could claim that its killing campaign was a figment of its critics’ imaginations. This human rights calamity was the work of a self-professed Catholic government convinced that it was fighting a holy war against godless subversives.
One silver lining of the Dirty War is that it ushered in the transitional justice movement. To be sure, Argentina did not invent transitional justice, broadly understood as the attempt to hold an old political regime accountable for its crimes. This honor usually goes to the French Revolution—as opposed to earlier historical examples of regicide, such as that of England’s Charles I—primarily because of the example that France set for an unambiguous transition in political regimes. In January 1793, France’s newly declared Republican government deliberated for five exhausting days over the fate of King Louis XVI. In the end, the king was found guilty of “crimes against the people” and sentenced to death at the guillotine.
But it was Argentina that gave transitional justice its contemporary renown. Argentina’s truth commission, created on December 15, 1983, was the first to garner international attention. Nunca Más (Never Again), the commission’s final report, became an international best-seller. The “Trial of the Juntas,” which began on April 22, 1985, was the first major trial to use the charge of crimes against humanity since it was introduced in the prosecution of the Nazi regime by the Nuremberg International Tribunal after World War II. Eventually, Argentina became a touchstone for a robust intellectual movement composed of human rights activists, political theorists, and legal scholars who posited transitional justice as a precondition for a successful democratic transition.
Although commonly regarded as a single movement, transitional justice in reality comprises a heterogeneous array of strategies, arguments, and policies dominated by two distinct but interconnected intellectual wings. On one side is the “retribution” camp, which advocates the vigorous prosecution of human rights abusers concurrent with the transition to democracy. Inspired by the prosecution of Nazi officials, retribution advocates seek to pursue justice to the fullest extent of the law. They are guided by the belief that the most effective way to deter future human rights abuses and advance the rule of law is to demonstrate that no one is above the law.
On the other side are proponents of “reconciliation,” who call for excavating and exposing the truth about human rights abuses, based on the belief that overcoming political trauma is only possible with a complete accounting of the past. “The truth shall set you free” is a common refrain associated with reconciliation activists. But advocates of this approach, including Archbishop Desmond Tutu, who served as chairman of South Africa’s Truth and Reconciliation Commission (TRC), have also infused reconciliation with more elusive principles drawn from Christianity, such as contrition, remorse, and forgiveness. Entrusted with exposing the truth about apartheid, the TRC proceeded in accordance with Tutu’s belief that justice is served when efforts are made “to work for healing, for forgiveness and reconciliation.”
At forty years of age, transitional justice can proudly claim many achievements. Most notably, the movement has afforded transitional democracies a host of legal and political tools for holding an old regime accountable, including political prosecutions, truth commissions, and restitution policies. The movement can also take credit for introducing a new sense of morality to international politics. Arguably, transitional justice has given the international human rights movement its biggest boost since the drafting of the 1948 Universal Declaration of Human Rights.
In some countries, prosecuting the old regime undermined the transition to democracy.
Transitional justice has also fueled the growth of the international justice system by encouraging the creation in 2002 of the International Criminal Court (ICC), the first permanent international organization charged with policing human rights abuses. Luis Moreno Ocampo, a prosecutor in the Trial of the Juntas, became the ICC’s first chief prosecutor. Less apparent is that transitional justice has compelled mature democracies to look into their own pasts to examine historical injustices for which ordinary means of redress, like trials, are no longer possible. Examples include efforts by Canada, Australia, and New Zealand to atone for harm done to Indigenous peoples, Britain’s apology for spreading homophobia throughout its colonial possessions, and the current reckoning with slavery and Jim Crow in the United States.
But the legacy of transitional justice is not an unalloyed blessing. Even in Argentina it has a dark side that is rarely discussed. In some countries, prosecuting the old regime undermined the transition to democracy by increasing political uncertainty, a very perilous thing for any country undergoing democratization. In other cases, the prosecution of the old regime hindered the rise of a democratic public culture by fueling apathy, cynicism, and mistrust toward democratic institutions. Ironically, the judicial system has usually been the target of these sentiments.
It is also notable that truth commissions in some countries became an obstacle to peace-building by reviving and aggravating old political feuds. In so doing, transitional justice worked to feed rather than heal political divisions. Most paradoxical of all, transitional justice sometimes has inadvertently diminished the quality of democracy by eroding the rule of law. In some cases, accountability for the old regime was so hastily arranged and arbitrarily dispensed that it made a mockery of the most fundamental principles of justice, such as equality under the law.
Argentina’s Travails
In new democracies, almost without exception, transitional justice created a glaring discrepancy between what was promised and what was delivered. This undermined citizens’ confidence in the capacity of the new democratic institutions to respond to their demands for justice and accountability, at the time when public support for democracy was most needed. Nowhere has this turn of events been more visible than in Latin America.
Argentina’s transitional justice travails have much to do with Argentines’ deep distrust in their governing institutions, including the judiciary. This is hardly what was envisioned by Raúl Alfonsín of the Radical Party when he won the presidency in 1983 with a promise to make holding the old regime accountable for its human rights abuses his top policy priority. Alfonsín’s campaign capitalized on societal revulsion at the horrors of the Dirty War, enabling successful prosecutions of the top military brass. General Jorge Videla and Admiral Eduardo Massera were sentenced to life in prison; General Roberto Viola to 17 years in prison; Admiral Armando Lambrushini to an eight-year term; and Brigadier General Osvaldo Agosti to four and a half years.
Transitional justice mechanisms faced stiff opposition from the military. Between 1987 and 1990, Argentina experienced numerous military rebellions over a host of issues, including low pay, budget cuts, and the prosecution of military leaders. Under pressure, Alfonsín dramatically reversed course in 1986–87 by enacting a set of amnesty laws, including the Ley de Punto Final (Full Stop Law), which abruptly ended human rights investigations and prosecutions. This served as a prelude for a series of pardons of military officers by President Carlos Menem in 1990. Rationalizing amnesty, Alfonsín cited the need for a more cautious approach to handling the military for the sake of protecting the new democracy. He said, “It should be irrational to impose a punishment when the consequences of doing so, far from preventing future crimes, might cause greater social harm than that caused by the crime itself or by the absence of punishment.”
But the amnesty laws and the subsequent pardons angered human rights activists, especially the Mothers of the Plaza de Mayo, the first major organization formed in Argentina to demand accountability for the military regime’s abuses. Activists eventually succeeded in overturning the amnesty and pardons through legal challenges. Argentina’s Supreme Court ruled in 2004 that crimes against humanity are not subject to statutes of limitation. In 2005, the Supreme Court ruled that the amnesty laws were unconstitutional, allowing for the resumption of human rights prosecutions. The rulings also struck down the policy of selective prosecution implemented by Alfonsín, which targeted only military leaders. In so doing, the Supreme Court made virtually anyone involved in human rights violations liable to prosecution.
The lack of consistency in the process of holding the old regime to account left a disheartening legacy for democracy and the rule of law. Jaime Malamud-Goti, one of the architects of the Trial of the Juntas, argued in his 1996 book Game with No End that the trials failed to advance democracy because they perpetuated the same us-versus-them mentality that enabled the junta to establish authoritarian rule in the first place. Malamud-Goti also contended that the trials ended up playing an anti-democratic role in the post-transition period by contributing to a new mode of authoritarianism and bigotry. Many Argentines have responded to authoritarianism by playing political and judicial hardball, inciting responses in kind. Prosecutions have stretched the capacity of the judiciary to its limit, with hundreds of cases against military officers still pending decades after the offenses were committed. This judicial bottleneck has fueled a rise in vigilante justice, as citizens take it upon themselves to bring justice to their former oppressors.
The Limits of Truth Commissions
Non-prosecutorial forms of transitional justice in Latin America, such as truth commissions, have engendered their own frustrations and disappointments. These bodies are generally defined as much by what they cannot do as they are by their mandates to establish the truth about specific events. Truth commissions lack the power to punish or prosecute human rights abusers—or even, in some cases, to assign blame to those responsible for abuses. Nor are they empowered to implement the reforms they propose for preventing future abuses and compensating the victims of past ones. Whether the reforms are embodied in law or policy is usually left to the discretion of politicians, who often have little incentive to see them implemented given the political risks involved.
In Chile, the 1991 National Commission for Truth and Reconciliation Report—unofficially known as the Rettig Report, after former Foreign Minister Raúl Rettig, the commission’s chair—found that some 2,000 people had been killed for political reasons during Augusto Pinochet’s dictatorship between 1973 and 1990. The report was repudiated by the military, which at the time was still headed by Pinochet; consequently, many of the reforms recommended by the report were either ignored or implemented slowly. The military did not even see fit to offer an apology to the Chilean people. In 1998, Pinochet was indicted by a Spanish magistrate on human rights charges for the killing of Spanish citizens living in Chile at the time of the military coup. He never paid for his crimes, however, since he was found to be mentally unfit to stand trial.
In El Salvador, the final report of the first truth commission in any country to be organized, staffed, and financed by the United Nations deeply angered the military and right-wing groups, which accused the commission of exceeding its mandate and criticized the report as one-sided. The commission examined the civil war that raged for much of the 1980s between leftist guerrillas under the umbrella of the Farabundo Martí National Liberation Front (FMLN) and US-backed Salvadoran military forces. Its report attributed 85 percent of the war’s acts of violence to state agents and only 5 percent to the FMLN. To appease the military, just days after the final report was released in 1993, the legislature passed a sweeping amnesty law that ensured that no actions were taken against those singled out in the report.
In Guatemala, a truth commission organized in 1997 by the Recovery of Historical Memory Project, a body headed by the Catholic Church and local human rights activists, documented the violence of Latin America’s longest and deadliest civil war, in which as many as 200,000 people are thought to have perished. The commission’s work drew a backlash that opened a new era of bloodshed and lawlessness. On April 28, 1998, Bishop Juan José Gerardi Conedera of the Guatemalan archbishop’s human rights office was bludgeoned to death, two days after he announced the release of Guatemala: Nunca Más, a report that revealed the military’s atrocities against civilians during the civil war. In 2001, four people, including three military officers, were convicted of the murder. Gerardi’s fate, which has become emblematic of the wave of political violence that has gripped Guatemala in the post–civil war era, suggests the limits of transitional justice as a means of curbing violent conflict.
Retroactive Justice and Transitional Revenge
Beyond Latin America, the experience with transitional justice offers more evidence of the repercussions for democracy and the rule of law that often follow the effort to bring accountability to an old regime. It also offers cautionary tales of the potential for transitional justice to go off the rails and morph into retroactive justice or outright revenge. In either case, the intention of those at the helm of attempts to hold old regimes accountable has often been not to deliver justice but rather to serve their own political agendas.
Transitional justice can go off the rails and morph into outright revenge.
In Hungary, soon after the collapse of the communist regime in 1989, the parliament hastily passed a law that lifted the statute of limitations for acts of treason, murder, and manslaughter during the communist period. This action was based on the argument that at the time when the crimes were committed, there was no legitimate government in place to prosecute them. But the Hungarian Constitutional Court struck down the law on grounds that it was “retroactive justice.” The court found that the law was vague and could be easily manipulated due to its fluid definition of treason.
In Germany, former communist leaders have been charged for actions that were crimes in the statute books at the time when they occurred, such as defaming the state. But such moves have not made it easier for prosecutors to win convictions and have done little to advance the rule of law. When convictions have been secured, it has not been for the crimes that the world knows about, such as the shoot-to-kill policy at the Berlin Wall, but rather for crimes often unrelated to communist rule. Erich Mielke, the notorious former director of the East German Ministry of State Security, better known as the Stasi, was prosecuted for the murder of a policeman in 1931, years before the existence of a communist state in East Germany. His subsequent role in spying on and repressing his countrymen was left unaddressed. None of this has provided much in the way of catharsis, healing, and closure for the deeds of the old regime.
Czechoslovakia availed itself of the policy of “lustration,” Latin for illumination as well as purification, which aims to disqualify officials of the old regime from taking part in the new regime. The country became an early model for this approach to transitional justice for other postcommunist regimes in East-Central Europe. A 1991 law banned former high functionaries of the Communist Party, members of the state security agency, and their collaborators from holding senior administrative positions in the government, the state-run media, and other state-owned enterprises for five years.
Lustration proved to be deeply problematic. As historian Timothy Garton Ash observed, the Czech legislation was so crude and procedurally unjust that President Vaclav Havel publicly expressed deep reluctance about signing it, though he did so. The law was also criticized by the Council of Europe. Wholesale disqualification simply for being a member of a category meant that particular circumstances could not be taken into account. Those publicly branded as collaborators with the old regime were denied access to the accusatory evidence, and they had limited opportunities to appeal the designation of collaborator and the resulting punishment. In effect, as Garton Ash noted, the accused “were assumed guilty until found innocent.”
Portugal’s experience with lustration was even more dispiriting. In 1974, the country inaugurated what is known among democratization scholars as the “third wave,” the massive cluster of democratic transitions that occurred in the last quarter of the twentieth century. At the center of the Portuguese transition was the controversial policy of saneamento (cleansing), an attempt to uproot the old right-wing ruling elite of the deposed Salazar dictatorship that had been in power since the 1930s. In less than a year, more than 12,000 people were purged from their posts on charges of collaboration with the Salazar regime. The purging began with the military, and from there it gradually extended to the civil service and to civil society realms such as the media, the Catholic Church, and the universities, as well as the business sector.
The purges quickly deteriorated into a witch hunt that nearly derailed the transition to democracy. Antonio Pinto, a scholar of Portugal’s democratic transition, has characterized the purges as “wild” because the tribunals making the rulings often deliberated with arbitrary notions of who counted as a collaborator, such as anyone suspected of harboring “authoritarian attitudes.” Such a capricious application of justice resulted in some people being punished for their political beliefs rather than for actual political crimes. The ensuing chaos triggered a counter-revolutionary military coup that halted transitional justice altogether and forced the introduction of a process of reconciliation and pacification. The new policy overturned most of the sentences handed down by the purge tribunals, provided restitution for those unjustly purged (including those forced into exile due to their convictions), and set the country on the path toward democratic stability with the elections of 1976.
Darker still is the more recent experience of Iraq. To say that Iraqi transitional justice has been more of a curse than a blessing would be an understatement. Attempts to bring accountability to the old Baath regime of Saddam Hussein can be blamed in part for sparking sectarian violence and bringing the country to the brink of civil war. After toppling Hussein in 2003, the United States introduced an ambitious policy of “de-Baathification,” broadly reminiscent of the policy of de-Nazification imposed by the Allies on a defeated Germany after World War II. By almost any measure, de-Baathification was a paradigmatic example of “victor’s justice.”
Under the influence of American occupying forces, the Iraqi government disbanded the Iraqi army, purged as many as 50,000 members of Hussein’s political apparatus, and put Hussein himself on trial. He was sentenced to death by hanging in a process that some human rights activists have depicted as a legal lynching, given concerns that a hurried trial would set a bad predecent for the new justice system. “Our respect for human rights requires us to execute him, and there will be no review or delay in carrying out the sentence,” Iraqi Prime Minister Nouri al-Maliki said in response to complaints about the trial’s numerous irregularities, such as the admission of hearsay evidence and prosecutors’ withholding evidence from the defense.
Today, the policy of de-Baathification is widely regarded as one of the gravest missteps in the American intervention in Iraq. It created a power vacuum in government, divided Iraqi political society, fueled sectarian violence and an insurgency against US forces, and tarnished the dignity of the law. A 2008 law passed by the Iraqi parliament was designed to reverse de-Baathification by permitting former members of the Baath party to return to their government jobs and allowing those who had reached retirement age to claim their pensions. This law was one of the key recommendations of the Iraq Study Group, a bipartisan commission created by the US Congress in 2006 to examine American policy in Iraq and recommend new approaches intended to facilitate political reconciliation.
Transitional Justice Reconsidered
To recognize transitional justice’s dark side is not to argue against holding old regimes accountable for their political crimes. Instead, it is a call for lowering expectations about the positive, causal connection that is often made between justice and democratization. Caution is necessary, given the unintended consequences for democracy and the rule of law that can ensue from holding an old regime to account. The pursuit of justice against a former regime is as much a moral imperative as it is a political process. Even under the best of conditions, such a fraught endeavor can go awry, resulting in unpredictable outcomes, as when transitional justice morphs into transitional revenge.
Recognizing transitional justice’s dark side is also an invitation to reconsider the one-size-fits-all prescription that every new democracy must confront the sins of a former regime with the tools promoted by the transitional justice movement. Some democratizing countries have benefited from unorthodox approaches to confronting a dark past, by incorporating measures that are anathema to transitional justice activists, such as amnesty, forgiveness, and even (at least temporarily) forgetting.
It is ironic that among the world’s most successful recent democracies are some that were either unable or unwilling to prosecute their former oppressors. In post-apartheid South Africa, a political miracle in many respects, concerns over rising racial violence and civil war convinced the democratic opposition to forgo political trials in exchange for a truth commission that famously traded truth for amnesty. In Uruguay, Latin America’s most advanced democracy, a 1989 referendum affirmed the amnesty granted to the military in 1986, following the transition to democracy. Recognizing the outcome of the referendum, Vice President Enrique Tarigo told Uruguayans that their decision had resolved “the last, thorny question from the past.”
In Spain, arguably the most successful democracy launched by the third wave, the transition to democracy was anchored in a “pact to forget,” an informal agreement among the leading political forces from the right and the left to let bygones be bygones. For the architects of the new democracy, what they called “disremembering” was a necessary condition to prevent history from repeating itself, especially the democratic breakdown of the interwar Second Republic and the Civil War. It was only in 2007, three decades after the transition to democracy, that Spain passed the Law of Historical Memory to address the horrific legacy of General Francisco Franco’s dictatorship, including what historian Paul Preston has called the Spanish Holocaust, the wave of political executions that followed the Civil War. Although the law condemned Franco’s institutions as illegitimate and ordered the removal from public view of all monuments and symbols honoring the Franco regime, it privileged reparations over accountability. While offering monetary compensation to those victimized by the old regime, the law kept in place the sweeping amnesty enacted in 1977 and did not call for a truth commission to assign responsibility for the Civil War.
A more comprehensive law, the Democratic Memory Law of 2022, nullified all the court rulings issued by Franco’s courts and compelled the government to pay for finding and exhuming the remains of those still buried in unmarked mass graves. This new law was preceded in 2018 by the exhumation of Franco’s remains—which had rested at The Valley of the Fallen, a monument to the dictator’s nationalist crusade, since his death in 1975—and their removal to a private burial ground outside of Madrid. As with the exhumation, the memory laws of 2007 and 2022 were passed under Socialist governments backed by regional/nationalist parties from Catalonia and the Basque Country, in the face of stiff opposition from conservative and centrist parties who view these memory laws as an attempt to erase history, born out of a desire to return Spain to the fratricidal battles of the past. Clearly, even a new democracy as consolidated as Spain’s can be vulnerable to bitter disputes over historical memory.
As the transitional justice movement enters its fifth decade, there is an obvious need for fresh thinking about how nations cope with the dark legacies of old regimes, and for challenging many of the orthodoxies of the movement, especially the binary choice of retribution or reconciliation. Since democratization takes place under a variety of political conditions, leaders must strike a balance between the moral responsibility to address past transgressions and the need to protect the stability of the new political regime. These realities may require accepting the legitimacy of alternatives to justice, such as amnesty and even forgetting.
More importantly, transitional justice is no substitute for embracing institutional judicial reforms that enhance a state’s prosecutorial capacities, safeguard the autonomy of judges, and empower civil society watchdogs. Absent such reforms, attempting to hold departing political regimes accountable will do little to prevent future human rights abuses, or to advance democracy and the rule of law.
University of California Press