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By
Agata Fijalkowski, Senior Lecturer in Law at Lancaster University Law School, United Kingdom.,
Raluca Grosescu, Associate Research Fellow in the Department of History at the University of Exeter.
This volume critically considers the manner in which post-dictatorial and post-conflict states are addressing past human rights violations through judicial accountability. The book's main objectives concern a fresh, contemporary, and critical analysis of transitional criminal justice as a concept and its related measures, beginning with the initiatives that have been put in place with the fall of the Communist regimes in Europe in 1989. By transitional criminal justice we understand mechanisms of judicial accountability carried out in post-dictatorial or post-conflict states in order to address past human rights abuses. In addition to trials, the concept also refers to cases where criminal law mediates other measures of accountability. The project argues for rethinking and revisiting filters that scholars use to interpret key issues of transitional criminal justice, such as: (1) the relationship between judicial accountability, democratisation and politics in transitional societies; (2) the role of successor trials in rewriting history; (3) the interaction between domestic and international actors and norms in shaping transitional justice; and (4) the paradox of time in enhancing accountability. In order to accomplish this, the volume considers cases of domestic accountability in the post-1989 era, from different geographical areas, such as Europe, Asia and Africa, in relation to key events from various periods of time. In this way the approach, which investigates space and time-lines in key examples, also takes into account a longitudinal study of transitional criminal justice itself.
GENERAL OVERVIEW
Judicial accountability for human rights violations was at the core of transitional justice debates in the first two decades that followed the end of WWII. The Nuremberg and Tokyo trials, as well as the activity of domestic courts in charge with the conviction of crimes against humanity and war crimes committed by the Axis countries, have been the subject of an impressive amount of scholarship. In the aftermath of WWII, criminal trials appeared to be for many researchers the most efficient instrument of transitional justice. However, with the democratisation processes that followed in the 1970s, 1980s and 1990s in Southern Europe, Latin America and Eastern Europe, truth or historical commissions, lustration or disclosure of former political police agents took the lead as instruments of reckoning with the dictatorial past. Criminal trials continued to play a certain role in transitional justice, but in many cases their scope was narrower than the scope of administrative justice, at least as regards domestic accountability.
from
PART I
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CRIMINAL JUSTICE AS A METHOD OF DEALING WITH THE PAST: OPPORTUNITIES, STRATEGIES, AND LEGAL AND POLITICAL CONSTRAINTS
By
Raluca Grosescu, Associate Research Fellow in the Department of History at the University of Exeter.,
Raluca Ursachi, Ph.D. in Political Science from the Université Paris-Sorbonne, with a thesis on post-Communist Romanian transitional justice policies and politics.
This chapter explores the relationship between transitional criminal justice and history writing in post-Communist Romania. It analyses the trials held concerning the repression of the December 1989 popular uprising, focusing on the narratives they have produced about the fall of the Ceauşescu regime and the responsibility for state-perpetrated violence. On the one hand, we evaluate the various interpretations that trials have given the events of December 1989, the symbolic founding moment of a new political order, as well as the political legitimacies constructed around these narratives. On the other hand, the chapter contributes to the general debate on the role of transitional criminal justice in building a common historical understanding of a former dictatorial regime. We will show that in Romania, in spite of important contributions of these trials to a gradual normalisation of the historical discourse about December 1989, their epistemic function was compromised by the interference of politics in the working of justice, and by the lack of predictability in judicial procedures.
INTRODUCTION
Various transitional justice scholars argue that trials held against former leaders of dictatorial regimes are not only forms of making justice, but also important processes of narrative construction, understood as ‘storytelling’ (mise en recit) about the repressive past. Besides performing the classic functions of criminal justice (punishing the guilty, preventing similar deeds in the future and reinforcing respect for the law), transitional trials may also play an epistemic role in societies in transition. According to Osiel, Niño or Teitel, the trial's verdict, with its legal and historical contextualisation and outcomes represents an ‘official and normative’ version of events that forges a common historical memory of the recent past. Transitional trials are seen as ‘monumental spectacles’ that affirm the contrast between the dictatorial past and the democratic present. They can also be viewed as ‘constitutional moments’ which provide narratives of history and simultaneously of morality, tales of what went wrong and how the future should be. By giving a voice to victims and perpetrators, by selecting what it is to be judged and remembered, and in which way, and by deciding on guilt and innocence, trials are forms of remembrance and history writing. The Nuremberg trials or Adolf Eichmann's conviction in Jerusalem are examples of the way in which criminal proceedings have modelled public awareness of mass murder.
This volume considers the important and timely question of criminal justice as a method of addressing state violence committed by non-democratic regimes. The book's main objectives concern a fresh, contemporary, and critical analysis of transitional criminal justice as a concept and its related measures, beginning with the initiatives that have been put in place with the fall of the Communist regimes in Europe in 1989.The project argues for rethinking and revisiting filters that scholars use to interpret main issues of transitional criminal justice, such as: the relationship between judicial accountability, democratisation and politics in transitional societies; the role of successor trials in rewriting history; the interaction between domestic and international actors and specific initiatives in shaping transitional justice; and the paradox of time in enhancing accountability for human rights violations. In order to accomplish this, the volume considers cases of domestic accountability in the post-1989 era, from different geographical areas, such as Europe, Asia and Africa, in relation to key events from various periods of time. In this way the approach, which investigates space and time-lines in key examples, also takes into account a longitudinal study of transitional criminal justice itself. About the book'Transitional justice nowadays is an industry which produces hundreds of texts each year and it is difficult to turn our attention to an intellectual product. This book is well-balanced and will find recognition in readers and students of transitional justice, as well as researchers on social transformation. It is a collection in the best tradition of socio-legal research. The book is recommended for two reasons: its serious treatment of criminal justice as a part of transitional justice, and its approach, which locates the problem of transitional justice in post-communist Europe in a broader, comparative context.' Prof. Dr. Adam Czarnota, Scientific Director of the International Institute for the Sociology of Law, O�ati, Spain'By carefully considering how criminal justice relates to democratization, collective memory, internationalist concerns, and the passage of time since violations occurred, this volume contributes importantly to the evolving transitional justice literature. The questions it raises are timely and theoretically grounded, and the choice of cases diverse and illuminating. Its authors richly contextualize their examinations, complementing recent broad comparative studies that explore large numbers of cases with little detail. This in-depth study critically advances our understanding of the challenges of justice on the fraught terrain of transitioning societies.' Nadya Nedelsky, Associate Professor and Chair, International Studies, Macalester College, Saint Paul, MN.'A collection of provocative, thoughtful and superbly documented contributions to our understanding of the dilemmas of transitional justice in post-dictatorial societies. The authors argue that democratic communities cannot function properly if they do not address past crimes and abuses. Genuine reconciliation cannot take place if memory and justice are ignored and denied. With its insightful comparative perspective, this book is highly recommended to all those who care about the relationship between human rights and democracy.' Vladimir Tismaneanu, University of Maryland (College Park)