An Excuse-Centered Approach to Transitional Justice
Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice.
This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define abusive regimes and transitional justice in contrast to stable states and ordinary justice. It argues that the public face of law in abusive regimes - composed of law, institutional practice, and social norms - is such that reasonable people living under its direction can conclude that abuses are at least not against the law. Given this, prosecuting in transition those who acted consistently with the pre-transitional public face of law would violate commitments to the legality principle.
The article argues for an approach to transitional justice organized around the description and provision of an affirmative defense based on legality and defends the proposed excuse against objections from different legal and philosophical perspectives. It concludes that, with the exception of top leaders, appeals to natural law, morality, international law, customary law, deterrence, reform, and incapacitation do not provide warrant for prosecuting most pre-transitional actors. The article further suggests how this excuse-centered approach can provide necessary support and justification for other elements of the hybrid approach, including truth commissions.
74 Fordham Law Review 2621 (2006).