viernes, 13 de noviembre de 2009

Due Process in the Context of Transitional Justice

Transitional justice has only recently become a field of its own. Despite the novice character of the field, it has expanded in an increasingly larger area in which a plurality of actors is in constant participation. In the same vein, transitional justice comprises an intricacy of elements that are closely intertwined: political, societal and legal. To analyze them in their entirety would be a herculean task that would go beyond the purpose of this essay. The purpose is to inquire in a specific facet within the normative framework and which reverberates across the aims of transitional justice. The right to due process is a central tenet of the rule of law and of any Western democracy, in particular of the liberal character. Its importance is evidenced by the fact that it is enshrined by the most relevant human rights treaties including the International Covenant on Civil and Political Rights (ICCP) specifically in its Article 14, among others. Nonetheless, it is posited that in times of transitional justice the right to due process must be interpreted according to the exceptional circumstances in which the trial is being carried out. The burden that complying carries regularly with the requisites of due process during ordinary times can, rightly so, impair a correct healing of a given society under a period of transitional justice. Thus, a plausible response to the dilemmas posed by that is to establish a lower threshold or the employ of alternate methods. Part I roughly analyzes the concept of transitional justice. For a correct understanding of the conditions surrounding the right to due process, it is essential to put in proper context what constitutes transitional justice and its objectives. Part II consists of two sections, a first one dedicated to developing a brief overview of the rule of law and the second one drawing the contours of the right to due process. Part III studies the problems with the right to due process related to a transitional justice background. Part IV is none other than the conclusion.

I. What ‘transitional’? What ‘justice’?

The fact that transitional justice is constantly evolving as a maturing field – and as a buzzword – does not exactly spell out to what it is referring to. The notion of transitional evokes a movement from one state to the other. But at the same time it conveys the assumption that a society is stalled in a particular moment and now is moving elsewhere. This is misleading. Several scholars have pointed out the deceptiveness of such thoughts. Any society is in continuous transformation, it is in transitional condition as it never stays the same[1]. It is irrelevant if these changes are for better or for worse, the fact is that no society is frozen within a certain setting. Hence the lack of clarity to what the transitional is related to.

The concept of justice equally suffers of an even bigger definitional problematic. It is one of the main philosophical and moral ideas of humankind and for that reason there have been bitter arguments over its content and delimitations.

Nonetheless, taken together transitional justice has an explicit content and it is circumscribed to a certain state of affairs. Transitional refers only to those societies changing to a liberal democracy direction after a period of authoritarianism. Justice has too specific a meaning. The UN contributes a concept of justice closely connected to the abovementioned definition of transitional justice. For the Organization, justice is

an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant[2].

Then, transitional justice can be defined as “a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse”[3].

What is occasionally omitted by certain authors is a description of the surroundings on which transitional justice happens, details that influence the possibilities of a successful process. These countries do not only come from a situation of moral bankruptcy and more often than not with the large shadow of the former regime hovering above them but also from a dire economic situation: rampant corruption, lack of resources, shabby infrastructure, and so forth. All these make the process harder as hard choices have to be made that can hamper the purposes of transitional justice[4]. Similarly, these purposes encompass “a multitude of discrete, though overlapping, and often conflicting themes”[5]. Clark has at least found six objectives; all of them interrelated to greater or lesser extent: reconciliation, peace, justice, healing, forgiveness and truth[6]. It is beyond this essay to divulge them but it is worth indicating that the right to due process for those people in charge of or responsible for gross violations of human rights have an effect on all of them. They are intertwined. There is no peace if there is no justice and justice is necessary for achieving the truth and subsequently to heal the wounds so there can be forgiveness and reconciliation. Before delving into the right to due process, it requires a step back. One central aspiration of transitional justice is to restore the rule of law. And because due process is subsumed in the rule of law, it is a precondition to analyze it before delving into due process.

II. The rule of law and its meaning in regards with the right to due process.

The rule of law is surrounded by the same uncertainties concerning transitional justice. Whereas transitional justice is at least confined to a particular situation in order to give it a workable meaning, the rule of law has varied faces and at the same time the existing different legal traditions put the accent over one trait upon another. In this regards, it is worth noting that many authors have done the enormous task of coming with a definition and with an explanation on what it consist of. Unfortunately, this would go well beyond this essay. However, despite the enormity of the rule of law, it is possible to locate certain characteristics that shed light over its importance and how crucial it is for countries that just came out from a long history of abuses to have it.

What underpins the rule of law is the idea of limitation. The rule of law came into being predominantly during the advent of liberal democracies during the eighteenth and nineteenth centuries. It is a barrier against untamed power. Under its premise, society must be a rule-governed enterprise. Power ought to be channelled through rules and norms. There cannot be arbitrariness or abuse of power. Thus, it has a positive and negative mandate. It establishes how a government must exercise its authority; how it should restrain its dominance through predictability and certainty. At the very same time, as a corollary of the concept, it promotes certain rights indispensable for a correct functioning under the rule of law.

Among those rights benefitting individuals, it comprises the right to a due process. It is not included in the basic core of human rights, but it illustrates splendidly how the rule of law operates. Due process is simultaneously a limit to power and a guarantee for the individual. For practical reasons of time and space, the right to due process used in this essay is taken from the Spanish Constitution. The choice of this text is due to the fact that its redaction was heavily influenced by the several human rights covenants existing at the moment of its enactment. Article 24.2 asserts that anyone has the right to a judge predetermined by law, the defence and assistance by a lawyer, to be informed of any charge against him, to a public process without unlawful delay and with all guarantees, to use any piece of evidence necessary for the defence, to not declare against oneself, to not confess guilt and to be innocent until proven guilty. The scope of the entitlement plainly reduces the government’s space in manoeuvring, and imposes a pro-active duty to demonstrate that someone is guilty. Consequently, “due process is designed in part to protect the innocent from punishment and prevent excessive punishment of the less guilty. But due process is also what gives legitimacy to trials and convictions”[7]. Under normal circumstances of a democracy running its usual course, due process reflects the respect for human rights and of a functioning democracy. It is true that it makes it harder to punish a criminal but it similarly permits the innocent to present their case fairly and to avoid an unwarranted sentence. Unfortunately, this presupposes a stringent and expanded interpretation of due process, something that can oddly enough affect negatively a society in transitional justice phase.

III. The conflictive nature of due process when applied during transitional justice.

Transitional justice refers to an extraordinary moment of any given society. This exceptionality is derived from the circumstance that the society is attempting to cut ties with the former regime so it can begin with a new liberal democratic society. It is backward-looking and forward-looking at the same time. It is a paradoxical situation where institutions are set up but are concurrently in a sui generis status. Take for instance the use of legal instruments which are according to Teitel

between the past and the future…between retrospective and prospective. Transitions imply paradigm shifts in the conception of justice; thus, law’s function is inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation[8].

However transformative legal instruments can be, not all are equally effective. Part of them can obstruct the restorative process. This inadequacy stems from the uniqueness of the period encompassing transitional justice. During this process a society is not only recovering from ordinary crimes, but from exceptional crimes as well. In the former state of affairs, a society was massively affected by gross violations of human rights. The state is frequently the main culprit as those committing and planning the wrongdoings are part of or are aided by the state. It could be a whole society – e.g. the Nazi Germany against the Jews – or one part of the society against other – e.g. Rwanda – or perhaps the suffering was inflicted mainly upon a minority – e.g. Muslims in Bosnia. What characterizes this situation is the active participation of a great segment of the fabric of the society in continuously abusing a relevant portion of the population. An involvement of this magnitude supersedes those legal responses that underline the rule of law in ordinary times. Equally, the other outcome is the presence of a whole social stratus being affected by the perpetrators. A massive crime generates massive suffering. It comes to no surprise that those who have endured exceptional pain (morally and physically) demand recognition of their suffering during transitional period: an acknowledgement of the negative experiences that disturbed their social condition during the former regime, as individuals but also as a collective[9]. Here enter the demands of justice. If there is no treatment of the gross violations committed during the former regime, there is no chance of reconciliation and the chance of moving forward because the wounds of the past haunt them. The exceptionality of the situation creates a requirement of a contextual justice especially elaborated during the transitional period. “What is deemed just is contingent and informed by prior injustice… legacies of injustice have a bearing on what is deemed transformative”[10]. In this context, the concept of justice shoulders a great importance because it directly leads to dealing with past injustices. As Stahn asserts, there is an intimate relationship between “restoration of justice and security in post-conflict situations”[11]. A failure in bridging the past atrocities with the establishment of a healthy society can lead to the reversal of the transitional justice, but by another collective. To bring justice is to choose one model depending on how backward or forward-looking it is: retributive, deterrent and restorative[12]. Irrespective to which model one leans to, there is a common attribute: prosecution of the perpetrators; normally through trials. And that is where due process comes into action. While it is true that there are other means of punishment, it has generally been understood as a necessary element of any transitional justice to process the prosecution of those responsible for egregious violation of human rights[13] bearing in mind the impact of an existing possibility of duty under international law to prosecute[14].

To begin with, prosecution of criminals through criminal law entails the assumption of individual, criminal liability. This is problematic. Under due process, anyone accused of wrongdoing must be proven guilty beyond certainty. That imposes an extra burden for instance in cases where the prosecuted formed part of the machinery of the state where the responsibility can be diluted except in case of top leadership. To punish them according to a strict understanding of due process could be equated to punishing under criminal law for political liability, eventually challenging the rule of law[15]. Equally, the evidences enough for proving an accused guilty are stringent. A lack of sufficient evidence along with the high threshold of the evidentiary requirements “of due process may make it not only generally more difficult to convict, but also particularly difficult to convict those who are most culpable”[16] because they were in a position to take advantage of the resources available, they could get rid of the evidences and because of their political position. By the same token, to make a veritable case against the perpetrator and demonstrating that he was guilty in taking part of the crime beyond reasonable doubt, is expensive[17]. Each trial requires time and resources to convincingly attribute the offence to someone that can be quite an issue in underdeveloped countries that are forced to spend their scarce resources on the trial of criminals while the victims of the atrocities are victimized for a second time as their basic needs are not fulfilled. Even more damaging, the scarceness of resources together with the lack of evidences and the requirements of due process force the prosecutors to be selective in their efforts. The mass character of the crimes does not help either. This puts the prosecutors in the dilemma against whom to press charges. The upshot is twofold: on the one hand, not all victims will be satisfied as not everyone who tortured, raped or murdered will be judged. On the other hand, the most culpable will not be targeted because those lower-level offenders are easier to prosecute under due process requisites[18]. In a similar stance, Kritz adds the political prism as he writes that “prosecution of every single participant in the planning, ordering or implementation of the atrocities in question – not to mention all those who collaborated with them – would be politically destabilizing, socially divisive, and logistically and economically untenable”[19]. The phenomena of “limited criminal sanction” come then to no surprise. This concept is espoused by Teitel, to whom this

constitutes compromised prosecution processes that do not necessarily culminate in full punishment…Depending on just how limited the process, investigations may or may not lead to indictments, adjudication, and conviction. Convictions are often followed by little or no punishment. In transition, the criminal sanction may be limited to an investigation establishing wrongdoing[20].

She ascribes this situation to the difficulties in subsuming systemic wrongdoings during the former regime in individual criminal liability. In other words, that the limited criminal liability is based on a thorough understanding of the complexities of crimes of a mass scale[21]. Although it is a valid assertion, the influence of due process in conjunction with the dire economic situation of a country in transitional justice also cannot be discarded.

Another inconvenience is the search of truth of past egregious violations. A trial’s primary role is in elucidating the defendant’s guilt. This is a direct consequence of due process demands of knowing under what charges one is being prosecuted. This restricts the story to the specific accusation brought up by the prosecutor. Truth then becomes a legal truth which covers only a small proportion of the narrative. Evidences that would aid in construing the story of past abuses are not deemed relevant if they are not related to the charges. They are discarded and not included in the discourse. Needless to say, this affects the victims as there is no space for expressing the abuses committed to them.

Last but not least, the turn to a legal response for former abuses has the drawback of the accused taking advantage of the process, and subverting further the right to due process[22].

IV. Conclusion

This essay noticeably exhibits the inconveniences of using a guarantee designed for ordinary times and essential in democracy as due process in extraordinary times and its inadequacy when coping with mass crimes where the state as a whole or a relevant part of the community has participated in their commission. If prosecution remains as one of the primary tools as a response in transitional justice, it is advocated a sui generis reading of due process. This is not tantamount to a complete disrespect of the human right, but an attempt to take victims into consideration. Based on Teitel’s, it is submitted that this distinctive reading does not endanger the foundations of the newly liberal democracy because, as its name suggests, transitional justice refers to a specific moment. A community is trapped between two regimes, thus the transitional period is by definition limited, which gives rise to a contextual notion of justice based on past grievances but with the purpose of remedying the victims[23].

[1] M. Freeman and D. Djuckic, “Just Post Bellum and Transitional Justice” in C. Stahn & J.K. Kleffner (eds.), Just Post Bellum – Towards a Law of Transition from Conflict to Peace 213, 214 (2008).

[2] UN Doc. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary General, 4 (2004).

[3] Definition given by the International Center for Transitional Justice. Available at (last time checked on 20th October 2009).

[4] See S.W. Daniel Han, “Transitional Justice: When Justice Strikes Back-Case Studies of Delayed Justice in Argentina and South Korea”, 30 Hous. J. Int’l L. 653, who argues in favour of delayed transitional justice, giving priority first for the economic development of the country.

[5] P. Clark, “Establishing a Conceptual Framework: Six Keys Transitional Justice Themes” in P. Clark and Z.D. Kaufman (eds.), After Genocide – Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond 191, 191 (2008).

[6] Id., 195-204.

[7] M.J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice”, 15 Harv. Hum. Rts. J. 39, 49 (2002).

[8] R. Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, 106 Yale L.J. 2009, 2014 (1996-1997).

[9] F. Hadelmann, “Another Kind of Justice: Transitional Justice as Recognition”, 41 Cornell Int’l L.J. 675, 678-680 (2008).

[10] Teitel, op. cit., 2014.

[11] C. Stahn, “Justice Under Transitional Administration: Contours and Critique of a Paradigm”, 27 Hous. J. Int’l L. 311, 315 (2004-2005).

[12] See Clark, op. cit., 197-198.

[13] See R. Teitel, “Transitional Justice Genealogy”, 16 Harv. Hum. Rts. J. 69, 72-74 (2003).

[14] See D.F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime”, 100 Yale L.J. 2537 (1990-1991).

[15] Teitel, op. cit., 2038.

[16] Aukerman, op. cit., 51.

[17] Id. 52.

[18] Id. 61.

[19] N.J. Kritz, “Coming to Terms with Atrocities: A Review of Accountability for Mass Violations of Human Rights”, 59 L.& Cont. Prob. 127, 138-139 (1996).

[20] R. Teitel, “Transitional Rule of Law” in A. Czarnota, M. Krygier and W. Sadurski (eds.), Rethinking the Rule of Law after Communism 279, 281 (2005).

[21] Id. 282-283.

[22] Teitel, op. cit., 848.

[23] Teitel, op. cit., 2013-2014, 2019-2020.