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 democracies? This core dilemma implies many others. What is the relevant legal order? Military or civilian? International or national? And, no matter what the relevant legal order, to what extent ought understandings of criminal responsibility be projected backward? Is the entire justice project hopelessly ex post? Who should be held to account, and, for what offense? These dilemmas of transition organize this chapter. These are the dilemmas successor societies struggle with; ultimately, as discussed below, they commonly strike a transitional compromise of the “limited criminal sanction,” which is, more than anything, a symbolic form of punishment.
The Foundational Argument for Criminal Justice in Transition
Why punish? The leading argument for punishment in periods of political flux is consequentialist and forward-looking: It is contended that, in societies with evil legacies moving out of repressive rule, successor trials play a significant foundational role in laying the basis of a new liberal order. At these times in a variant of the conventional “utilitarian” justification for punishment, the basis for punishment is its contribution to the social good.1 But unlike the conventional arguments for punishment in ordinary times that either tend to focus on the perpetrator or on the consequences of punishment for the society, as deterrent, for example, the arguments for punishment in transition take another form. Rather than an argument for punishment in the affirmative, the argument is generally made in a counterfactual way—what result if no punishment? To what extent are broader rule-of-law values jeopardized without punishment? Here is where the particular political circumstances of the transition play a role. While the argument from “impunity,” that is, arguing from the consequences of the failure to punish, is also made in ordinary times,2 it is apparently stronger in transition, because in the conditions of prior lawlessness, expectations are greater of the impact of even isolated acts of accountability on rule of law. For these are extraordinary circumstances of past injustices, often state sponsored. It is against this backdrop that the argument from impunity takes on new meaning. In this context, the exercise of criminal justice is thought to best undo past state justice and to advance the normative transformation of these times to a rule-of-law system. Repressive regimes are often defined by criminal behavior, such as torture, arbitrary detention, disappearances, extrajudicial executions, all substantially state sponsored; even when past evil is perpetrated by private actors, the state is often, nevertheless, still implicated, whether in policies of persecution, by acts of omission in failing to protect its citizens, or, finally, in the cover-up of criminal acts and impunity. While the circumstances of transition, primarily the involvement of the state in criminal wrongdoing, make a most compelling argument for punishment over impunity, the paradox is that the very transitional circumstances of the ancien régime’s implication in wrongdoing also raises significant dilemmas challenging the uses of the criminal law as effective response to state wrongdoing.
To enforce norms of the rule of law in the context of wrongdoing at the level of the state in the international realm is punishment’s historic role. The foundational argument for successor trials has a rich historical pedigree going back to the Middle Ages, drawing from international legal norms relating justice to unlawful political violence. Trials have long been used to express international legal norms regarding injustice in war. The attribution of criminal responsibility to prior political leadership for waging unlawful war, or other similar bad state rule, is the thread running through the ancient successor trials of the tyrants of the city-states described by Aristotle and the trials of Kings Charles I and Louis XVI, to the trials in the contemporary period: the Nuremberg trials, the Tokyo war crimes trials, Greece’s trial of the military colonels, and Argentina’s trial of its military commanders.
Historically, successor trials rely on a concept of tyranny grounded in treason; of the unjust war as the lost war.3 This early understanding of the relation of law to justice yields to another formulation at Nuremberg, where trials were used to express a much broader normative message going beyond the judgment of a defeated foreign régime, to distinguish “just” from “unjust” violence. In the contemporary moment, successor criminal justice is generalized beyond its postwar uses to other transitions in which its central normative force appears to be condemnatory of past political violence. The delegitimation of ancien régime violence goes beyond the purview of the postwar trial. Trials of the political leadership are used to construct the very meaning of state injustice. Punishment is largely defended on the grounds that it advances the society’s political identity in the transition as a democratic rule of lawabiding state. Contemporary theorizing largely justifies punishment in transition for its potential role in constructing a newly democratic political order.4 Successor trials are said to be politically useful in drawing a line between regimes, advancing the political goals of the transition by delegitimating the predecessor regime, and legitimating its successor. The trials of Kings Charles I and Louis XVI, as well as the Nuremberg trials, are said to be foundational political acts. As Michael Walzer writes, “Revolutionaries must settle with the old regime: that means they must find some ritual process through which the ideology it embodies … can be publicly repudiated.”5 Of the trial of King Louis XVI, Walzer contends that “public regicide is an absolutely decisive way of breaking with the myths of the old regime, and it is for this very reason, the founding act of the new.”6 The king’s trial was politically definitive, because it established that he was not above the law.7 Through the successor trial, the law instantiated equality under the law, thereby performing the essential normative shift implied in the movement from monarchic to republican rule. Successor trials were defended on similar grounds by the late Judith Shklar: “Trials may actually serve liberal ends, where they promote legalistic values in such a way as to contribute to constitutional politics and to a decent legal system.”8 In Otto Kirchheimer’s words, trials enable “the construction of a permanent, unmistakable wall between the new beginnings and the old tyranny.”9
In much prevailing political theorizing, successor trials are thought to have the potential of playing a distinct role in drawing the line between old tyrannies and new beginnings. Criminal justice offers normative legalism that helps to bridge periods of diminished rule of law. Trials offer a way to express both public condemnation of past violence and the legitimation of the rule of law necessary to the consolidation of future democracy. Successor criminal justice is generally justified by forward-looking consequentialist purposes relating to the establishment of the rule of law and to the consolidation of democracy.10 This version of the consequentialist argument particular to transitions is characterized here as the “democracy” justification of punishment largely on the basis of the purposes of the transition. Criminal proceedings are well suited to affirm the core liberal message of the primacy of individual rights and responsibilities.
Nevertheless, successor trials’ role in such periods is less foundational than it is transitional. Using criminal justice to draw the line between regimes raises profound dilemmas chiefly relating to the implied relation of law to politics. While trials in these political contexts are intended to serve political purposes—relating to the extraordinary message of transitional justice to lay the foundation of the political transition, to disavow predecessor political norms, and to construct a new legal order—these very features are in tension with conventional understandings of the rule of law. The core dilemma relates to the central feature of transition: the political context of the normative shift. This core dilemma raised by the political shift from illiberal to liberal rule is inextricably enmeshed in the problem of retroactivity in the relevant norms during the change of regime and the exercise of the successor regime’s new normative rules as applied to the past regime’s behavior. As the dilemma’s full ramifications are played out, its consequences are deeply paradoxical: For trials to realize their constructive potential, they need to be prosecuted in keeping with the full legality associated with working democracies during ordinary times, and when they are not conducted in a visibly fair way, the very same trials can backfire, risking the wrong message of political justice and threatening a fledgling liberal state. Accordingly, successor trials walk a remarkably thin line between the fulfillment of the potential for a renewed adherence to the rule of law and the risk of perpetuating political justice. The apparent intractability of the dilemmas raised by the uses of the criminal law for transitional rule-of-law purposes clarifies why successor societies frequently forgo its use and why it has given rise to the development of a more “limited” form of the criminal sanction.
The transitional normative message is most clearly expressed through the international legal order, as its strengths are a normative machinery with the capacity to comprehend extraordinary political violence deployed outside the ordinary legal order. As such, it is well suited to express the transitional message of normative shift. Paradoxically, its strength is also its weakness, for its extraordinary nature clearly, at least to some extent, falls outside conventional legality and, therefore, ultimately does not sufficiently adhere to ordinary understandings of the rule of law to affirm democratizing transformation.
The Legacy of Nuremberg
Since World War II, the vision of successor justice is dominated by the legacy of Nuremberg. The significance of the Nuremberg trials is best understood, in its full historical and political contexts, by returning to post–World War I transitional justice and its failed national trials policy.11 Justice policy at Versailles throws into clear relief the justice policy at Nuremberg and clarifies why national trials were considered to be hopelessly political and doomed. The failure of that earlier postwar national justice is said to explain only the subsequent resurgence of German aggression; the failure of accountability is itself considered to cause the failure of liberalization. War-related guilt borne by the country as a whole was deemed to prevent a transition to lasting democracy. The view of national justice as hopelessly political represents prior postwar policy, with apparent repercussions for the century.
So it was that at Nuremberg the obverse of the postwar response became the norm. As after World War I, the mechanism for accountability is the trial, and the primary offense continues to be aggression. Nevertheless, the similarities end there. Nuremberg’s significant differences are that accountability remained in Allied hands; jurisdiction was not national but international. And, rather than punishing the country, the aim was ascribing individual responsibility. Yet, as we shall see, the reality of the Nuremberg trials diverged from its intended mandate.
Nuremberg’s legacy is complicated by the evident gap between the scholarly idealization of this singular precedent and its historical reality. A half century later, the trials’ reverberations are still being felt. How justice was done at Nuremberg, including its profound irregularities, has become virtually synonymous with successor justice. A legal anomaly at the time, the Nuremberg trials remain a largely anomalous precedent, given the record of successor practices in this century. Yet, one way to better understand Nuremberg’s precedential significance is to distinguish between various understandings of the precedent, for example, between Nuremberg as the proceedings, in the convening of the International Military Tribunal and the international criminal justice proceedings, and its doctrinal aspects, that is, the Nuremberg judgments. Beginning with the precedential aspect of the convening of these proceedings, it is here that the precedent is on the shakiest ground. In the fifty years since Nuremberg, while there is often talk about the desirability of such a tribunal, heightened during wartime, it has rarely culminated in trials, although, as we come to the century’s end, momentum has been building for the establishment of a permanent international criminal court.12
The weight of the precedent is not in the proceedings but, rather, in the way it has shaped the pervasive understanding of transitional criminal justice. In the last half century, Nuremberg has shaped the dominant scholarly understanding of successor justice with the shift in approach, from national to international processes, as well as from the collective to the individual. Successor criminal justice—Nuremberg style—implied a wholly novel and international judicial forum, multinational criminal procedure, as well as offenses such as the “crime against humanity.” The approach to successor justice is thoroughly international in its relevant offenses, bases for jurisdiction, and legal principles.
A historiographical look reveals the precedent’s substantial impact in the scholarly literature, in particular, in how accountability is largely conceptualized in terms of international law. Review of the bibliographies concerning accountability for grave state crimes reveals that literature about international law responses to atrocities since World War II, particularly in the English language, has grown rapidly, while the comparative study of national experiences is, by contrast, virtually ignored.13 Historically, one reason for the weight of scholarship relating to postwar successor justice is that it reflected the parallel developments of international law. The postwar period witnessed an unprecedented successful multilateral cooperation in the International Military Tribunal at Nuremberg, the establishment of the United Nations, as well as the passage of numerous conventions and resolutions regarding international crimes. The depth of the atrocities of the National Socialists and their collaborators spurred a previously unattainable international consensus. The optimism and momentum of the newfound consensus about international crimes, as well as the international cooperation of the trials, made credible the hope of creating a body of international criminal law regarding state persecution that would be enforced by some manner of international tribunal. Legal literature reflects these advances in international legal structures and pronouncements. A burgeoning international law literature regarding the responses to state persecution incorporated the themes and vocabulary of an emerging international criminal law: the way the crimes were defined, the significance of the International Military Tribunal, the expansion of jurisdiction over certain acts, and, perhaps the most significant notion, the emergence of national rights and duties within a new international community. All became major areas of study that continue to the present.
Nevertheless, the historical justification for framing the successor justice question in international law terms has largely dissipated. Postwar hopes for developing an international criminal law today remain largely unfulfilled. The early enthusiasm for international law’s advances is now tempered by sober reflection on the relative inefficiency of international mechanisms for responding to atrocity. International penal law remains in its infancy: There is still no international criminal code. And, despite repeated calls for an international criminal court or even the creation of criminal jurisdiction in the International Court of Justice, the forum has yet to be created. In very recent developments, a consensus has emerged in the international community supportive in principle of a standing international criminal court before the end of the century.14 Yet, granting an international body jurisdiction over criminal offenses other than genocide remains a sticking point with countries that are staunchly opposed, such as the United States. Even in international law controversies of a noncriminal nature in which international jurisdiction has been premised on consent, it is fair to say that there has been a race to the bottom.15 Accordingly, international crimes that have been defined have not always been accompanied with universal jurisdiction. With standing in the International Court of Justice exclusively for states and with incentives for states to remain impervious to suit, the present international legal structure has not helped in the enforcement of the convention protecting against genocide and other international law guarantees. The literature calling for increased international norms and enforcement mechanisms extends well beyond the parameters of the postwar consensus and the international legal system.16 The gap between international law’s definitions of crimes and its mechanisms for enforcement remains a yawning chasm. Nevertheless, despite its extraordinary nature, international law offers a normative vocabulary that somehow mediates many of the dilemmas of transitional justice.
Transitional Dilemmas and the Nuremberg Paradigm Shift
The paradigm of justice established at Nuremberg and its vocabulary of international law, despite its shortcomings, continue to frame the successor justice debate. Within the international legal system, the dilemmas of successor justice fall away. The view of national justice as hopelessly political derives from the earlier history of post–World War I policy, with apparent repercussions for the century. In the abstract, the dilemmas of successor justice are seemingly best resolved by turning to an autonomous legal system. While within the national legal scheme, the question of justice seems inextricably political, from an international law perspective, the question of justice is somehow divorced from national politics.17 Even where international justice is utterly ad hoc, as for example regarding atrocities in the Balkans conflicts, somehow it is, nevertheless, considered less political than the alternatives in the region. International law is thought to lift justice out of its politicized national context.
International Law and the Dilemma of Retroactive Justice
The core transitional dilemma is how to conceptualize justice in the context of a massive normative shift. This problem is mitigated within international law, for international law offers a degree of continuity in law and, in particular, in standards of accountability. Thus, the postwar entrenchment of international legal norms is considered to afford a jurisdictional basis that goes beyond the limits of domestic criminal law. International law seemingly offers a way to circumvent the retrospectivity problem that is endemic to transitional justice. International standards and forums uphold the rule of law, while satisfying core fairness and impartiality concerns. The precedential and binding value of international legal action is frequently deemed superior to efforts undertaken on a state-by-state basis. Differences in domestic law mean certain crimes will be punishable in some countries and not in others. Further, truly heinous crimes, such as atrocities, do not easily fit in national law, because such crimes are conceptualized in fundamentally different ways than are offenses under national law. Certain crimes, such as torture, either fit awkwardly or are often not recognized in national law, though the move toward the incorporation of international law standards into domestic law may somewhat obviate this problem.
International criminal law offers an intelligible way to conceptualize the somewhat paradoxical possibility of the responsibility of an evil regime under the law. So it is that international criminal law builds a historical analogy of postwar justice that dominates the Nuremberg trials. It is definitional of justice at Nuremberg, with the arch offense, the waging of war. And, according to its charter, the trials’ purpose was to prosecute the major war criminals for offenses—all in some way related to the war. And the trials’ forum is an international military tribunal, and the leading offense, aggression. Even “crimes against humanity,” atrocities committed against civilians, were prosecuted at Nuremberg, only if related to the war. This prudential restraint observed by the tribunal perpetrated the historical view of state injustice as that perpetrated by a foreign power. This narrow line circumscribing the Nuremberg prosecutions would have ramifications constraining the precedent’s potential for transitional justice.
The Dilemma of State Crimes but Individual Responsibility
Transitional criminal justice raises a core dilemma of how to ascribe criminal accountability for offenses that often implicate the state in repression policy. International jurisprudence offers a standard in the Nuremberg principles. Formulated after the trial at the request of the United Nations General Assembly, the “Nuremberg Principles” comprise the distillation of the Nuremberg judgment and constitute a pivotal turning point in the conceptualization of responsibility for state crime. For the first time, the tribunal and the follow-up trials clearly established that responsibility for atrocities under international law could be attributed to individuals: “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.”18 Further, in rejecting traditional defenses to individual responsibility for atrocities, Nuremberg dramatically expanded the potential individual criminal liability for state wrongs. While, traditionally, heads of state enjoyed sovereign immunity under the Nuremberg Principles, public officials could no longer avail themselves of a “head of state” defense based on their official positions but, instead, could be held criminally responsible.19 Although under traditional military rules applicable in a command structure, “due obedience” to orders is a defense, under the Nuremberg Principles, persons acting under orders could be held responsible.20 In eliminating the “act of state” and “superior orders” defenses, the Nuremberg Principles pierce the veil of diffused responsibility characterizing the wrongdoing perpetrated under totalitarian regimes. Under the law of war, the principle of command responsibility affords a basis for attribution of responsibility to superiors for wrongdoing. This basis is reinforced by the Nuremberg Principles lifting the defense of immunity from the heads of state. The extreme in status-based prosecutions after Nuremberg is illustrated in the Tokyo war crimes trials for atrocities committed in the Philippines, where the principle of command responsibility was broadly enforced. In the Tokyo trials, General Tomoyuki Yamashita was held criminally responsible for atrocities committed by his troops, convicted, and executed—all without any showing of personal involvement or even knowledge of the acts committed by his subordinates. Nevertheless, the courts hearing his case said that “he should have known” of the violations of the law of war in the area under his command.21 From the vantage point of subsequent history, Yamashita’s negligence standard for command responsibility would be suigeneris, an extreme in the conception of official responsibility for the persecution perpetrated by subordinates. In the subsequent High Command and Hostage trials against high-ranking German army officers, the Yamashita standard was rejected, and the courts insisted on knowledge and individual participation or acquiescence in the criminal acts or criminal neglect: “Criminality does not attach to every individual in this chain of command…. There must be a personal dereliction.”22
Vietnam revived scholarly interest on the question of leadership responsibility for grave state crimes, and it made very clear the high political stakes involved in a permissive principle of command responsibility.23 Cases concerning the Mylai atrocities led to the narrowing of the principle of command responsibility. There had to be some connection between the atrocities occurring in the area under the commander’s control and some sense of personal fault on the commander’s part.24 This version of the principle of command responsibility is now enshrined in the international legal conventions: Failure to take measures to avert particular harm is proscribed. Explicitly rejecting the Yamashita “should have known” standard, under article 86 of the postwar Geneva Conventions, “knowledge” triggers a duty to take “all feasible measures” to prevent or repress the breach.25
International humanitarian law offers a normative framework and language for thinking about successor justice.26 Regime wrongdoing can be conceptualized and accommodated under the rubric of the law of war. Thus, the principle of individual responsibility at Nuremberg is complex, seen in the evolution of the principle of command responsibility, as well as in the way the principle itself mediates individual and collective responsibility. It is also seen in the International Military Tribunal’s reliance on principles, such as the law of conspiracy, whereby individuals were prosecuted purely on the basis of their membership in particular groups.27 Nevertheless, it is difficult to adjust international law and its military analogy to incorporate a full account of successor justice. For the international paradigm implies a status-based approach to successor criminal justice, which largely relates individual political status to context within the regime. Yet, a broad status-based liability standard, as exemplified in the Yamashita case, suggests that holding commanders accountable for the acts of their subordinates can backfire. When such prosecutions rely on official status as a basis for criminal liability, they threaten the principle of individual responsibility.
After Nuremberg, our understanding of successor liability was never the same. For the Nuremberg Principles wrought a radical expansion of potential individual criminal liability—at both ends of the power hierarchy. Postwar jurisprudence signified a radical expansion in potential individual criminal liability with no clear stopping point. The absence of a recognized stopping point was conceded even at the time. While prosecutions commenced with the major war criminals, nothing in the Nuremberg Charter limited ascribing responsibility to the Nazi regime’s top echelon. On the contrary, the charter explicitly contemplated that holding the leaders accountable was just the beginning and that there would be all sorts of follow-up trials.28 During the postwar transformation in the understanding of individual responsibility for grave state crimes, the following dilemma emerges: While the principles generated at Nuremberg radically expanded the potential individual criminal liability, they do not offer a basis for deciding who, among all of those potentially liable, to bring to trial.
The post-Nuremberg liability explosion has massive ramifications that have not yet been fully absorbed. Among political analysts and legal scholars, Nuremberg is understood to have effected profound changes in the understanding of individual criminal responsibility under international law, but there is no appreciation of how the changes pose dilemmas of liability. The massive contemporary expansion in potential criminal liability raises real dilemmas for successor regimes deliberating over whom to bring to trial and for what crimes. Indeed, the problem is evident in the scholarship regarding punishment in transition,29 going to the reasons that transcend the particulars of a country’s political contexts and, rather, go to contemporary developments in the conceptualization of legal responsibility. To the extent that there is even a workable guiding principle, it is the implied one of proportionality. The priority is to target those “most responsible for the worst crimes,” starting with those at the highest level of responsibility for the most egregious crimes.30 Yet, as is more fully discussed below, proportionality in the abstract does not fully address the dilemmas raised by the attempt to respond to pervasive crimes of repressive rule within the criminal law. Indeed, as transitional practices discussed below suggest, the punishment priority is not a universal ideal but, rather, contingent on the particular society’s political circumstances, as well as on the extent of its normative shift.
Playing out the Nuremberg Precedent in National Courts
Though deploying military principles of responsibility may be sensible in a postwar context, and transitions often follow war, they also occur in other ways, and the Nuremberg standards do not easily guide this successor justice. Nevertheless, the appeal of the international criminal justice framework extends beyond postwar trials to other modes of successor justice.
Transitional justice is caught between the analogies of war and peace and, relatedly, between international humanitarian and domestic law. The military analogy is evident when successor trials policy begins with prosecution of the prior regime’s leadership. Grounding criminal responsibility on political status extends the logic of the analogy to war crimes to abuses perpetrated under dictatorship and other repressive rule. Our intuitions after nondemocratic rule may well be that it is fair to ascribe responsibility to the top political leadership, yet the grounding of transitional justice in the extraordinary international law paradigm and the law of war seems at odds with our intuitions about criminal justice. The question raised is whether responsibility for wrongs perpetrated under repressive regimes can be fairly attributed to a state’s top political echelon. To what extent is the political authority arrogated by dictators, or a repressive regime in and of itself a basis for criminal liability? Grounding criminal liability on the basis of the offender’s official status would generally be at odds with our intuitions about the operation of the criminal law in democracies and poses a profound challenge to the rule of law.
Successor trials grounded in international law’s reliance on the law of war are few and far between. Thus, Latin America’s transitions out of military rule are a rare contemporary example. In Argentina, it was the defeat in the Falkland’s war that brought the army to collapse and enabled the transition from military junta to democracy, culminating in the prosecution of junta leaders for “gross negligence” in the waging of war.31
In another contemporary example, after the Soviet collapse, the transitions in that region are haunted by a pervasive sense of occupation, analogous to postwar defeat. So it is that the revolutions in Hungary and the former Czechoslovakia begin in commemorations of the resistance to the Soviet and Nazi invasions. There were critical questions of transitional justice in the region: Whose dictatorship? Whose justice? After the Communist collapse, the pivotal question of successor justice is to what extent the repression could be viewed fully in terms of the long-standing postwar paradigm—as that of a foreign occupier. Ultimately, the question framed shifts from that of national responsibility to that of individual responsibility. So it is that the former leadership was called to task for collaboration in the Soviet invasions of their countries. Successor trials are conceived around defining juncture points, drawing the line between freedom and repression, resistance and collaboration. This is the line that is being drawn and redrawn in the trials in the region.
The critical juncture point in the former Czechoslovakia was 1968. In the first wave of prosecutions after the “velvet” revolution, former party leaders were brought to trial for treason in collaborating, framed in terms of abuses of public power in the crushing of the Prague spring.32 Four years later, a new law declaring communism “unlawful” and “illegitimate” laid a basis for further prosecutions.33 The law defined as an offense, the “joining of forces with a foreign power,” such as assisting in the country’s occupation after 1968. Thus, the former secretary of the Central Committee of the Communist Party, Vasil Bilák, was charged with treason for inviting the armies of the Warsaw Pact countries into Czechoslovakia in 1968. Ultimately, however, these prosecutions largely culminated only in investigations of the period.34
In Poland, the question dominating the Polish parliamentary commission’s investigation of the country’s former leader, General Wojciech Jaruzelski,35 was whether the former regime’s 1981 imposition of martial law crushing the Solidarity movement was the result of Soviet pressure or a sign of an all-too-willing Polish collaboration. If Jaruzelski’s decision to impose martial law resulted from an agreement with a foreign government, it could have become the basis for a treason trial.36 Other prosecution proceedings were limited to those constituting “war crimes,” pursuant to the analogy to international law.
Successor justice in Hungary was formally grounded on the basis of treason defined as collaboration with the Soviets and, in particular, in the bloody suppression of the 1956 uprising.37 Constitutional review of Hungary’s treason law addressed core transitional dilemmas raised by using criminal law to condemn what had been previously condoned under the prior regime. When Hungary’s Constitutional Court held newly enacted treason legislation unconstitutional because it suffered from retroactivity,38 a follow-up law that limited prosecutable offenses to “war crimes”39 enabled the prosecutions to go forward based on an analogy to postwar trials. When the Communist Party leadership was put on trial in Romania in trials otherwise lacking in the rule of law, it was for war crimes under international law. “Genocide” charges were brought in military courts against the top leadership for attempting to put down a popular uprising in 1989, though convictions were ultimately obtained on lesser charges. “Crimes-against-humanity” charges were invoked also against former Communist officials in Albania in the transition.
A concerted effort is now underway to expand and normalize postwar understandings of state persecution. This effort is evident, for example, in developments in international humanitarian law in which understanding of the offense of wartime persecution extends beyond the international response to actions within the state.40 It is also seen in the jurisdiction of the ad hoc international war crimes tribunal regarding the former Yugoslavia, as well as in that jurisdiction of the proposed international criminal court. In these contemporary instances, a dynamic understanding of “crimes against humanity” moves beyond a predicated nexus to armed conflict to become virtually synonymous with persecution.41
International law’s perceived advantage in creating criminal accountability, in particular, international humanitarian law combined with the real advances of the immediate postwar period, has rendered international criminal law the dominant language of successor justice. Though its strength is not evident in a record of international trials, its profound normative force is evident in the emerging understanding that state persecution transcends national law to imply international accountability. The recognition of a shared language gives rise to a form of accountability, in the identification and exposure of persecution across national borders.42 When states fail to protect, the leading response of the international human rights community to state persecution is in documenting and reporting grave abuses. In recent years, significant developments have occurred in the strengthening of international mechanisms designed to investigate and publicize claims of atrocities. Worldwide accountability occurs primarily through the exposure and public censure of state persecution. Thus, if and when it is established, the role of a permanent international criminal tribunal may well be as an ongoing investigatory and indicting body. The greatest legacy of the Nuremberg precedent is that the question of state accountability would never again be confined within national borders but instead, would be a matter of international import.
Transitional Justice and the National Legal Order in Comparative Prespective
Despite the appeal of the international scheme, as a general matter, most regimes in transition attempt to normalize the succession by integrating their responses within the existing legal system. The questions then become how successor justice might account for the change in political regimes and, in particular, how to accommodate the central feature of transition, the normative shift implied by the change in political regimes. Transitional responses in national law vary in their ability to accommodate political transformation, because these juridical processes are convened within a prevailing legality. Often, the attempt to obtain accountability for predecessor wrongdoing stretches domestic law systems to their limits. These responses to extraordinary political violence test core rule-of-law principles of security and general applicability of the law.
A record of national trials follows waves of political transition. Before World War I, there were trials for atrocities committed against Armenians within the Ottoman Empire.43 After World War I, the agreement at Versailles was for Germany to conduct its own national trials; these would be very limited in number. Following World War II, the actions of the National Socialists and their collaborators prompted massive attempts at accountability. Despite the dominance of the international paradigm in the scholarly literature, the legal responses to National Socialism and its collaborators were, in the main, domestic in nature. Prosecutions of those implicated in World War II–related atrocities still constitute the largest body of precedent of criminal accountability at the national level. These national trials span close to five decades, encompassing common law, civil and socialist legal systems, and extending to almost every country where the crimes were committed and beyond.44 Moreover, throughout Europe, the domestic law impact of the postwar transitions is still being felt. In Germany, World War II–related prosecutions have been ongoing, from the 1950s to the contemporary period.45 In France, the late 1980s’ trial of Klaus Barbie was followed by other cases brought against high-level French collaborators, such as Paul Touvier and Maurice Papon.46 Holland continues to prosecute its collaborators. Australia and Canada saw prosecutions of World War II collaborators residing in these countries in the late 1980s.47 In the United Kingdom, the War Crimes Act of 1991 was passed to enable prosecuting of suspected wartime collaborators residing throughout the United Kingdom.
In the twentieth century’s second wave of transitions, in southern Europe, instances of successor trials are those of the Greek and Portuguese juntas.48 In the third wave of political transition in Latin America and Africa, Argentina put its military commanders, as well as other army officers on trial; and in the Central African Republic, despot Emperor Jean-Bedel Bokassa was brought to trial. In the transitions out of Communist rule, there have been scattered trials of the top leadership in Romania and Bulgaria, and in the former Czechoslovakia, trials of high- and mid-level party officials. In Germany, there have been trials at all levels, generally relating to the shootings at the Berlin Wall.49 The collapse of Yugoslavia sparked Bosnian conflicts and atrocities and was followed by trials. After the collapse of its Marxist regime, Ethiopia put on trial the top echelon of the prior regime.50 Since its political transition, Rwanda has been in the midst of genocide trials.51
State Crimes but Individual Justice
Transitional criminal justice raises the dilemma of trying to apply the principle of individual responsibility to grave crimes committed under illiberal rule. After repression, the central problem is that the state ought to respond where it is responsible through a prior regime implicated in prior wrongdoing. How can the state mediate the normative shift between regimes in these paradoxical, compromised circumstances of justice that involve the likelihood of state implication in past wrongs? In these conditions, what is the relation of individual and state responsibility?
In shifts after repressive rule, the pervasiveness of persecution in undemocratic societies often defies principled attempts to secure retribution. The ensuing critical question that arises in attributing criminal accountability is, What should the priority be? Should it be the political leadership that masterminded the repression or those at the very bottom of the political echelon who personally committed the brutal acts? Should a successor punishment policy prosecute all wrongdoers, or might selective prosecutions be fair? And, if a selective prosecution policy is adopted, on what basis should such policy be adopted?
Where ought a prosecution policy begin? The normative claim that punishment advances the rule of law does not necessarily justify punishing all offenders. Indeed, the aims of defending democracy and affirming the rule of law can well be served by exemplary prosecutions. As a practical matter, it would seem that some selectivity is inevitable, given the large numbers generally implicated in modern state persecution, scarcity of judicial resources in transitional societies, and the high political and other costs of successor trials. Given these constraints, selective or exemplary trials, it would seem, can advance a sense of justice.52 But the line is a thin one. An exemplary prosecutions policy runs the risk of undermining the very democracy purposes of the trials, advancing instead a rank message of political justice. Selective prosecutions policy can threaten the rule of law.