As we witness the turmoil of the transition of power from President Donald Trump to Joe Biden, we are reminded of the importance of the concept of Transitional Justice. This concept is originally concerned with the question of what to do in a new democratic state about violations of law and human rights that went unpunished during periods of oppression, as well as violations that went unpunished themselves or went unpunished.

In her article, “Editorial Note: Globalized Transitional Justice” (International Journal of Transitional Justice, Volume 2, Issue 1, March 2008), Ruti Teitel of New York University School of Law writes, “‘Transitional justice’ is an expression I coined in 1991 at the time of the Soviet collapse and on the heels of the late 1980’s Latin American transitions to democracy. In proposing this terminology, my aim was to account for the self-conscious construction of a distinctive conception of justice associated with periods of radical political change following past oppressive rule.”

In this section, I would like to discuss some of the problems associated with the transition of power that this perspective of “transitional justice” can teach us. A hint for this is the voluminous Russian-language report “Between Revenge and Oblivion: The Concept of Transitional Justice in Russia” (https://trjustice.ilpp.ru/introduction.html), published in October 2020. From the point of view of the author, whose research has focused on the problems of regime transition in the region after the collapse of the Soviet Union, too many researchers are familiar with the concept of “transitional economy” but not with the concept of “transitional justice.” I would like more people to know about “transitional justice,” which is actually an extremely important legal concept. I would like more people to know about “transitional justice,” which is actually an extremely important legal concept, and I would like to see its scope of application expanded.

 

What is “Transitional Justice”?

First, I would like to talk about what “transitional justice” is. In the Secretary-General’s Report on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies (https://www.un.org/ruleoflaw/files/2004%20report.pdf), published in 2004, the United Nations defines transitional justice as “the process of coming to terms with the legacy of large-scale past abuses in order to ensure accountability, achieve justice and achieve reconciliation. It encompasses the full range of processes and mechanisms associated with a society’s attempt to come to terms with the legacy of past large-scale abuses in order to ensure accountability, deliver justice and achieve reconciliation. They point out that these may include judicial and non-judicial mechanisms with varying levels of international involvement (or none at all), as well as individual prosecutions, reparations, truth-seeking, institutional reform, review and dismissal, or a combination of these.

It should be noted that what the UN refers to here as “justice” is defined as “the ideal of accountability and fairness in the protection and defence of rights and the prevention and punishment of wrongs. In other words, “justice implies respect for the rights of the accused, the interests of the victim and the well-being of society as a whole.

In any case, the UN is trying to understand “transitional justice” as it relates to the justice system.

On the other hand, according to Keiko Ko’s article “Transitional Justice and the International Criminal Court” (https://mie-u.repo.nii.ac.jp/?action=repository_action_common_download&item_id=6967&item_no=1&attribute_id=22&file_no=1) says that after the Cold War, the interest of the international community has changed in the form of supporting the transition to a society where violence and human rights violations are not repeated. The concept of “transitional justice” emphasizes this direction of social change.

Ko indicates that nowadays, transitional justice refers to how the new democratic regime should respond to what was done during the old regime, in other words, it refers to the various mechanisms (or tools) for establishing the rule of law and creating a society where human rights are respected, as well as the framework for discussion about them.

In Ko’s case, it seems that she is trying to discuss “transitional justice” not only in terms of the judicial system but also in terms of political relations. Applying this concept to transitional justice, her attention is focused exclusively on dictatorships in Latin America and Eastern Europe and their post-collapse transitions. A typical example is After Oppression: Transitional Justice in Latin America and Eastern Europe (https://collections.unu.edu/eserv/UNU:2500/ebrary9789280812008.pdf), published by the United Nations University Press in 2012.

 

Report “Between Revenge and Oblivion”

The first Russian report was jointly published by Nikolai Bobrinsky and Stanislav Dmitrievsky on October 10, 2020. The report presents the results of a study on the legal challenges posed by the institutional impunity of crime in Russia and suggests measures to address the adverse consequences of “transitional justice.” I would like to introduce some of the interesting points in the report.

　The report describes the purpose of “transitional justice” as follows:

“Transitional justice aims to ensure effective and lawful responses to gross human rights violations that have gone unpunished in the past and other serious violations of the rule of law recognized by the authorities, with a view to clarifying the circumstances of such violations, bringing those responsible to justice, applying legal and just punishment, redressing the harm caused to victims and ensuring that unlawful attacks are not repeated. It is intended to redress the damage and ensure that unlawful attacks are not repeated.”

From this perspective, it aimed to “prepare and propose for discussion a model for future transitional justice in Russia” from the standpoint that transitional justice should be planned in advance in the hope that Russia will return to the path of building a democratic rule of law in the future.

In this way, it can be seen that this report attempts to discuss transitional justice with a focus on the judiciary. The structure of the report includes a description of the theory of transitional justice, its external and international practice, its legal and methodological framework (Introduction), the rationale for the choice of transitional justice institutions in Russia (Chapter 1), and their characteristics (Chapters 2-6). The main part of the report is devoted to the legal concept of transitional justice (Chapter 8) and its institutional framework (Chapter 9).　

 

Introduction, Section 3: “General Information on Transitional Justice

First, I would like to introduce the third section of the introduction, “General Information on Transitional Justice,” to give you a better understanding of the “transitional justice” defined in the report.

The report points out that transitional justice is primarily aimed at legal responses to large-scale human rights violations that have gone unpunished for political reasons, as well as reparations for their victims. At the same time, it is proposed to focus on the rights and needs of victims. However, in addition to these main objectives, the paper takes the position that transitional justice is not limited to judicial issues, as there are links between transitional justice and political and institution-building issues such as the restoration of the rule of law, protection of the new democratic order, and national reconciliation.

In this connection, it is interesting to note that “in recent years, some countries have sought to use transitional justice to address the consequences of corruption-related crimes and economic repression” (a perspective that motivated the discussion here).

 

Important “General Information”

　The following is a list of what I consider to be important “general information” about transitional justice.

“According to a widely used perception, especially in the United Nations, the main mechanisms (institutions) that transitional justice involves are: criminal prosecution, fact-finding, reparations, and guarantees of non-repetition. In particular, according to the widely used perception of the United Nations, the main mechanisms that transitional justice involves are: criminal prosecution, fact-finding, reparations, and guarantees of non-repetition, of which lustration (misogi) are usually the most problematic.”

“Modern scholars of transitional justice find examples of it in ancient history. But as a set of legal measures united by a common purpose and supported by a rationale, it was only formed at the turn of the 80s and 90s of the 20th century. The fall of military regimes in Latin America and the subsequent efforts to restore civil peace and democracy revealed problems in the legal response to crimes committed by the former regimes. These issues have attracted the attention of activists from international human rights organizations and human rights researchers. They have begun to search for the optimal balance between justice and the interests involved in building a legitimate democratic order. In this regard, the term “transitional justice” has come into use.”

“Currently, various mechanisms of transitional justice are at work in dozens of countries around the world. Among the relatively recent comprehensive programs in this area that should be mentioned are the Truth and Dignity Commission in Tunisia, the Law on Decommunization and Cleansing of Power in Ukraine, and the agreement between the government and the Revolutionary Armed Forces of Colombia (FARC) on victims of armed conflict in Colombia.”

“The 1991 Law on the Rehabilitation of Victims of Political Repression, in addition to rehabilitating and repealing several provisions of the Soviet Penal Code aimed at suppressing dissent and freedom of conscience It also includes provisions on compensation, restitution of confiscated property, criminal liability of those who participated in the investigation and review of cases of political repression, and restoration of Russian citizenship to the repressed. In practice, however, the application of these provisions has been almost entirely limited. Transitional justice mechanisms that have become widespread in post-communist Europe, such as lustration, open access to political police archives, and the return of ownership rights to nationalized property, are largely unknown in Russia.”

” Transitional justice is the opposite of the two extremes that often emerge in a society’s transformation from repressive authoritarianism to democracy: revenge and oblivion.”

It is from here that the title name “Between Revenge and Oblivion” was decided upon. This first extreme occurs when victims (or their spokespersons), who have long been deprived of justice, take justice into their own hands and commit genocide. Classic examples include Operation Nemesis, carried out by the Armenian Revolutionary Federation against the organizers and perpetrators of the Armenian genocide, the street executions of state security agents during the 1956 Hungarian uprising, and the shooting of Ceausescu and his wife.

In the second extreme, the perpetrators of the crime go unpunished and the survivors are encouraged to forget everything. In such cases, remaining uncorrected and unpunished inspires new executioners, but society has not received the necessary “inoculation” against dictatorships that tend to resurface in new forms. Examples include post-Soviet Russia, Azerbaijan, and the former Soviet republics of Central Asia.

This means that transitional justice should be positioned between the first extreme (revenge) and the second extreme (oblivion).

 

Impunity as an Important Issue

The “transitional justice” discussed here is not about the future, but about how to deal with justice for events in the past. Therefore, it is concerned with the concept of impunity. It also means that the rights of the victims are not restored.

The concept of impunity “means that it is legally or factually impossible to bring an offender to justice (criminal, civil, administrative, or disciplinary), and that such a person should be prosecuted, arrested, tried, and, if found guilty, sentenced to a punishment and compensation that may be appropriate to the victim of the crime committed. It means that no procedural steps have been taken to ensure that the victims of the crimes committed are properly punished and compensated if they are charged, arrested, tried and found guilty,” the report noted. Thus, the report defines impunity as “an inadequate legal response to crime in the form of failure to prosecute the perpetrators of crime and/or failure to provide reparations to restore the rights of victims.”

Impunity occurs when: (i) law enforcement agencies do not identify the crime (in criminology, spontaneous latency); (ii) law enforcement agencies are aware of the crime, but unjustifiably refuse to initiate criminal proceedings (the same hidden crime); (iii) criminal proceedings are refused or terminated due to the extinction of criminal liability by the statute of limitations; (iv) criminal proceedings are not initiated because the person subject to criminal liability has immunity from criminal prosecution and the conditions necessary to overcome it are not met; (v) a criminal case is prosecuted, but the criminal proceedings have not been initiated on the grounds that the person subject to criminal liability has immunity from criminal prosecution and the conditions necessary to overcome it have not been met; (v) a criminal case has been prosecuted but the offender has not been identified or has evaded investigation; (vi) the person who committed the crime has been released from criminal liability or has been released from punishment under a pardon; (vii) the person who actually committed the crime has been released from criminal liability or has been released from punishment under a pardon (7) A person who did not actually commit the crime is held criminally responsible.

From the victim’s point of view, impunity arises when (1) there is no legal basis for compensation, (2) the statute of limitations has expired, (3) compensation is unjustifiably denied by the court, (4) compensation provided by law or ordered by the court is clearly disproportionate to the nature of the harm, (5) the offender has not been identified, and (6) the decision to compensate for harm is not enforced.

Of course, the International Criminal Court recognizes the need to overcome such impunity, and the Court may allow proceedings in criminal cases where a State with jurisdiction is investigating (or has waived prosecution), but where that State is unwilling or unable to conduct an adequate investigation or prosecution.

The question is whether, as a criterion for disallowing the application of impunity, some measure could be envisaged not only for international crimes such as aggression, war crimes, crimes against humanity, and genocide, but also for cases such as domestic transitions of power.

 

Prescription

The challenge is to review the statute of limitations in order to ensure that impunity does not occur by prescription. In the case of Russia, the period of possible criminal prosecution ranges from 2 to 15 years, depending on the gravity of the crime, and the statute of limitations does not apply to terrorism, hostage taking, and crimes against the peace and security of humanity. However, from the standpoint of “transitional justice,” we should consider adding crimes that are not absorbed by the statute of limitations (no statute of limitations), such as (1) an attempt on the life of the state or a public official, and (2) an attack on the life of a person administering justice or conducting a preliminary hearing, as well as corruption and official crimes.

If we interpret “transitional justice” in the broad sense of the transition from an oppressive to a democratic government, it is only natural that the system should be set up so that the president, prime minister, ministers, etc. involved in the previous government can be brought to justice regardless of the statute of limitations, as the possibility of the “evil” of the previous government being exposed increases during a change of government in a democratic country. In this sense, the statute of limitations should be reviewed. In this sense, it is extremely important to review the statute of limitations.

In doing so, the statute of limitations for bribery cases involving politicians and bureaucrats should also be significantly extended. As I pointed out in my article “Japan’s backward step in regulating ‘corruption exports'” (https://webronza.asahi.com/politics/articles/2020111700003.html), the Japanese government should consider extending the statute of limitations applicable to bribery of foreign governments from five years to much longer. As I pointed out in “Japan’s Lousy Hand in Hand” , the Japanese government has been repeatedly asked by the OECD to extend the statute of limitations on bribery of foreign governments from five years to much longer. With the idea of “transitional justice,” the statute of limitations could be extended to 20 or 30 years, and it should be done sooner rather than later.

 

Pardon

Pardons also generate impunity. An amnesty law usually contains a list of categories of persons who are exempt from responsibility or punishment for specific crimes (also specified in the amnesty law) committed before the law was adopted. Transitional justice requires that those involved in all crimes, without exception, against constitutional human rights, civil liberties, and freedoms under the previous administration, as well as those involved in criminal acts aimed at appropriating or retaining power, not be impunity through pardon.

For example, Trump announced in November 2020 that he would pardon Michael Flynn, former assistant to the president for national security affairs. On Dec. 8, a federal judge dismissed Michael Flynn’s indictment following Trump’s pardon, but said it did not mean the former national security adviser was innocent of lying to Federal Bureau of Investigation agents about meetings with the Russian government before Trump’s inauguration, according to “The Washington Post Electronic Edition (https://www.washingtonpost.com/local/legal-issues/michael-flynn-case-dismissed/2020/12/08/31abb5de-0975-11eb-a166-dc429b380d10_story.html).

A pardon for Flynn would not be granted by “transitional justice” since Flynn was associated with criminal activity involving Trump himself as a presidential candidate. This is why the pardon system needs to be revised in line with “transitional justice” to avoid such a situation.

There is a large difference in the “clemency” of US presidents. Barack Obama issued 1,927 clemency cases in eight years. Of these, 212 were pardons and 1,715 were commutations. By contrast, on November 23, 2020, Trump had only pardoned 28 cases and commuted 16 sentences, for a total of 44 clemency cases (he later pardoned 15 former aides and others found guilty in the investigation of alleged meddling in the U.S. presidential election on December 22, and commuted five sentences. (The New York Times [https://www.nytimes.com/2020/12/24/us/politics/trump-pardon-power.html] reported that as many as 49 people were pardoned or had their sentences commuted between December 21 and 24. These results rather suggest that Obama’s approach should not have been restricted. In any case, generous treatment by the president should be strictly limited from the standpoint of “transitional justice.

 

Election

The widespread use of falsification of voting results in favor of certain political parties by members of the Election Commission throughout the country during elections, the police turning a blind eye to the falsification, and the refusal of investigative and judicial agencies to consider related complaints are common phenomena in authoritarian and tyrannical states. Another common practice of those in power is to initiate criminal cases against political opponents, forcibly arresting them, and keeping them off the candidate register. In addition, existing powers may use their official positions to force participation in election rallies, support the election campaigns of some political parties and candidates, and obstruct the election campaigns and distribution of election materials of other parties and candidates.

In order to reduce the occurrence of election-related impunity, it would be necessary to review the right of appeal against election results. In the case of Russia, the right of appeal belongs only to the candidates and electoral bodies who have registered and participated in the election. The period of appeal is limited to three months from the date of the vote.

Even within the framework of transitional justice, the right to file an election complaint is not likely to be unlimited. However, it should be possible to set the period to one year instead of three months. Alternatively, the transitional justice authorities could be given the right to file an administrative claim to annul the election results. Furthermore, from the standpoint of transitional justice, it may be “possible” to allow the new election commission to investigate election fraud after the election. In such a case, it may be necessary to revise election-related laws, such as the disclosure of social media-related expenditures, to suit the digital age.

 

Thus, from the perspective of “transitional justice,” it seems that there are still points that need to be revised even within the judicial systems of democracies. This is true not only for the United States and Russia, but also for Japan. In particular, Japan’s lagging judicial system should urgently review its existing system from this perspective. (For more information on the lagging judicial system, see my article “Hurry Up Judicial Reform: Renew with Digitalization” [https://webronza.asahi.com/politics/articles/2020122300002.html]).