Forms of transitional justice

Transitional justice measures can be identified as those of retributive, rehabilitative, and reparatory or restitutive justice. As regards retributive justice, it starts with the question of whether to prosecute and punish the crimes and injustices of the past regime, or apply the principle of amnesty to guarantee social peace and reconciliation.

Complete amnesty for political crimes is one option for transitional justice in securing the process of democratization, for instance, in post-FrancoSpainand post-apartheidSouth Africa. The idea of drawing a ‘thick line’ under what happened in the past and moving on with political transition was equally favoured by the first post-communist government of Tadeusz Mazowiecki inPolandin 1990. This approach was profoundly affected by round-table talks which required mutual respect and recognition and thus significantly limited the possibility of prosecuting communist crimes, even when the policy of amnesty had never been part of the political agreement. Parties to the Polish round-table talks even referred to this model of transition as a ‘Spanish solution’ (Walicki 1995: 188).

On the opposite end of this scale of retributive transitional justice is the principle of identifying and, if possible, punishing all the crimes of past autocratic or totalitarian regimes, such as the prosecution of Nazi crimes. Responding negatively to the politics of amnesty associated with the ethics of reconciliation and forgiveness but also to the practical need to break the political deadlock, prosecutors, nevertheless, have to deal with significant technical problems in criminal justice, such as the period of limitation for some crimes, evidence and its reliability, and the interpretation of the letter of authoritarian laws in the new democratic condition (Arnold 2006: 413).

For instance, examples of prosecuting Nazi crimes decades after the Holocaust show the difficulties surrounding fact-finding procedures. The post-1989 decision of the German Parliament to extend the period of limitation for the most serious crimes committed under the communist regime in the former GDR is an example of compromising the principle of legal security and the prospective nature of criminal law in favour of the principle that no crimes should go unpunished, especially if prosecution and punishment were made de facto impossible for political reasons (McAdams 2001).

The rehabilitation of individuals criminalized and persecuted by the authoritarian regime is another part of transitional justice. The restoration of civic and political status returns human dignity to the persecuted individuals, recognizes the just cause of their struggle against the authoritarian regime, and is usually associated with some form of reparatory measures, natural restitution or financial compensation for past confiscations, imprisonments and other persecutions.

Rehabilitative justice involves corrective and distributive justice. Measures of restitutive justice thus aim at facilitating both political and economic transition and returning expropriated property either in the form of natural restitution (restitutio in integrum), or financial compensation. This form of transitional justice is primarily retrospective and reparatory because it aims at dealing with past politically organized and systemic breaches of justice on the basis of the equal protection of all before the law. Nevertheless, its goals are also distributive and prospective in the sense that restitutive laws and judicial decisions support the economic reform and property rights of individuals, churches, corporations, etc. Restitutions thus involve structural tensions between past suffering and present needs, between ethical motivations and policy priorities (Přibáň 2007: 165).