Transitional Justice: The Emerging Democracies Reckon with Former Enemies.

Constitutional democratization is on stage in many regions of the world today as an increasing number of countries shed their repressive pasts. Although welcome, this trend raises many troubling and complex issues, all tied to the core question of how new democracies will reckon with the legacy of abuses committed by past regimes. How should the new government delineate the division between itself and the old regime? Should it prosecute ousted officials or purge old regime workers from their government positions? Should it compensate and rehabilitate victims? If so, will such policies hinder the rebuilding process or compromise rule by law?

At this watershed juncture in world history comes a landmark contribution from Neil Kritz, senior scholar in the Rule of Law Initiative for the United States Institute for Peace, author of reports on the treatment of war crimes in Rwanda and Cambodia, and coordinator for the review of the draft Russian Constitution. From Nelson Mandela's foreword to a formidable lineup of expert contributing authors and reports from such groups as Amnesty International, Human Rights Watch, the Council of Europe, and the Organization of American States, Kritz has assembled the most comprehensive study of its kind.

This is a three-volume work of 35 countries over the past 50 years. The volumes can be navigated using an author index, country index, or a cross reference between individual country studies and associated legal documents.

Volume I, "General Considerations", is a multi-disciplinary analysis of transitional justice. Perspectives from political science, history, law, philosophy, and psychology distinguish between different governmental transitions and the circumstances that shape them. Accountability and moral responsibility are critical topics and, with a general discussion of ethics, are reconciled with the constraints often posed by political systems. The laws of war, specifically command responsibility for war crimes and the duties of both superior and subordinate where immoral and illegal orders are concerned, are also considered.

Volume II, "Country Studies", is a chronological, in-depth study of 21 countries in the post-Second World War era. Germany's two transitions, from Nazism and from communism, receive due attention. Critical transitional justice issues for Germany--the trials of Erich Honecker and the East German border guards, the status of Stasi informants, and the issue of public access to Stasi files--are discussed. Kritz praises Greece and the Karamanlis Government for a quick implementation of "dejunctafication" and for tackling remaining issues of transitional justice in an "unusually firm and swift manner". Post-Franco Spain, Argentina's desaparecidos and the subsequent "Nunca Mas" report, Czechoslovakia's "Velvet Revolution" (including an interview with Vaclav Havel), and an analysis of post-communist Russia are other highlights of this volume.

Volume III, "Laws, Rulings, and Reports", contains more than 100 juridical documents from 28 regime transitions. It is divided into four sections. The first contains Truth Commission charters, reports and constitution excerpts of transitioning governments. The second section details the controversial nullification of selected laws and the enactment of purge, screening and voting restriction decrees punishing "conscious collaborators". Judicial reviews are provided. The third section tackles the question of whether to prosecute or grant amnesty to transgressors. Presidential pardons, excerpts from the Nuremberg tribunal decisions, special prosecutor reports, and revealing legal brief of the 1991 murder trial of East German border guards help frame this debate. The fourth is devoted to compensation and rehabilitation. The degree of public liability for victims, specific provisions, indemnification laws and the restoration of confiscated property are examined.

Kritz cites several dilemmas inherent to transitional justice. First is whether to publicly prosecute former leaders and their strongmen as a means to establish government credibility. The alternative is the granting of amnesty or suspension of statutes of limitations in order to move forward and not dwell in the past. Second, regardless of the severity of the crimes, vengeance must not be allowed to taint judicial due process, a non-negotiable tenet of a government of laws. The "kangaroo trial" and subsequent execution of Nicolae Ceausescu is a contemporary example of succumbing to that temptation. As South Africa's 1993 Constitution eloquently puts it: "... gross violations of human rights ... can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation". Another dilemma lies in non-criminal sanctions, such as the practice of lustration in the Czech Republic. The critical question here is whether purging from the public sector runs counter to democratic principles. Lastly, there is the dilemma of restitution and rehabilitation, of compensation for property or other material loss. For a fledgling democracy, this pressing yet fundamental issue typically boils down to a question of how best to utilize precious and scarce financial resources. Funds can be used to compensate victims or they can be used to prime, privatize or otherwise reform the economy.

Transitional justice has become internationalized. The trend is for new democracies to pass muster in the eyes of the world community. The attention of foreign governments and non-governmental organizations, especially in advising or resourcing, is therefore welcome by governments in transition as a means to establishing legitimacy. Because transitioning from one political system to another is a costly enterprise, all the more so if the disbursement of compensation is included, financing transitional justice has also become internationalized. Considering its timely release and robust scholarliness, Transitional Justice rates as one of the most important political science works of the past year. It is essential reading. Expect it to be a guide post in the field for years.