Academic literature and international legal documents on transitional justice have concentrated on transitions from dictatorships or armed conflicts, while neglecting hybrid regimes. In such regimes, physical violence is less characteristic (even though not unknown), but centralised corruption, state-organised plunder of resources, and the gradual demolition of the guarantees of democracy and the rule of law during the ancien régime require exceptional transitional measures when building a new democratic regime. Just as the questions of democracy and the rule of law are not binary (“yes” or “no”), transitional measures after hybrid regimes should also be proportionate. In European cases, as far as the legal framework is concerned, besides general international law, the case-law of the ECtHR is mostly relevant. The present piece does not outline a precise roadmap, but it can be helpful for those who are or will be planning such roadmaps by conceptualising certain key dilemmas.

Concepts

“Transitional justice” includes various legal techniques, norms, and processes, de facto practices, and political narratives that are designed to help the transition from a non-democratic state (dictatorship, hybrid regime) into a democracy. It is much more than just court-like procedures about crimes by officials of the ancien régime.

By hybrid regimes, I mean regimes that are between well-functioning (embedded, consolidated) democracies and dictatorships (i.e. violent, oppressive regimes with systematic and severe human rights violations). Instead of having an adjective attached either to “autocracy” or “democracy”, the terminology “hybrid regime” expresses better the in-between status that I would like to stress here.

By “Europe”, I mean the signatories to the ECHR. Therefore, it is not a geographical, but a legal concept which is relevant in order to establish the relevant legal framework (especially ECtHR case-law) of potential transitional justice processes.

Hiatuses of the current transitional justice discourse

If you try to find solutions for the questions of what kind of transitional measures should be taken in the future after a hybrid regime ends in Europe, you will be disappointed. In the literature on transitional justice there is little that can be used – just bits and pieces here and there, some fragments, but nothing specifically addressing these issues. Concerning the topic of the present piece, the discourse suffers from four hiatuses:

First, it is based on a mistaken premise of the “end of history paradigm” (according to which relapse is just an exceptional accident). The way most of the literature writes about transitional justice still mirrors the mood of the 1990s: non-democratic regimes tend to become democracies (“end of history” euphoria), and even if there are relapses (it would be difficult to deny this historically), these are rather just unfortunate accidents. To use medical language, transitional justice is conceived as a one-off “post-traumatic” treatment of exceptional accidents. I suggest that it should rather be seen as a continuous “anti-alcoholic” treatment aimed at avoiding future relapses. The emergence of dictatorships or hybrid regimes nowadays does not just “happen” to countries as an externally caused accident, these developments grow out of inherited cultural patterns.¹⁾ And even if they are externally caused (e.g. via military invasion), in the long run they often distort the local culture (i.e. attitudes and beliefs of the local population) into a feeding ground for their own regime. I call this “institutional alcoholism”.

The usual German translation of transitional justice “Vergangenheitsbewältigung” (literally “dealing with the past”) expresses exactly this misunderstanding of equating transitional justice with just dealing with what has happened in the past. This is not simply a “framing issue”, as it actually has practical consequences for what type of measures are recommended and for how you weigh trade-offs between various measures. If non-democratic relapses are only exceptional accidents, then you do not have to worry about the demoralising effects of amnesties – you just want to get it done and get back to normalcy. But if you think that relapses are culturally conditioned and that they can easily happen (just like an alcoholic tends to relapse without external help), then you are much more careful with letting perpetrators get away and just move on.

Second, it lacks focus on hybrid regimes (ie its triggering threshold is too high). Both the academic literature and dedicated international documents on transitional justice have concentrated so far mainly on transitions from full-blown dictatorships or civil wars, normally requiring “severe and systematic” violent incidents (mass tortures, abductions, killings, rapes, etc.), often in the context of international armed conflicts or civil wars. In hybrid regimes, however, physical violence is less characteristic (even though not unknown), but centralised corruption, state-organised plunder of resources, and the gradual, often informal and systematic demolition of the guarantees of democracy and the rule of law during the ancien régime require exceptional transitional measures when building the new democratic regime.

Third, it lacks focus on crony capitalism, plundering and corruption (ie it almost exclusively focuses on physical violence and violations of civil and political rights). Another feature of the discourse is its almost exclusive focus on physical violence (“past widespread or systematic violence”, see Zunino p. 5) or violations of civil and political rights (ibid 49 and 51). Economic questions normally come up only either as the (triggering) economic context of physical violence or when there is a transition from a non-market-economy (typically socialist regime) into market economy. The discourse is traditionally understood as a subfield of international human rights law – issues such as crony capitalism, resource plundering and corruption are, however, difficult to conceptualise as human rights violations. If you leave these untouched though, then non-democratic forces will have the resources to return and it will convey the message that you can get away with it, so in the future it is worth trying it again.

Fourth, it is legalistic and almost exclusively principle-driven. The discourse generally lacks good empirical studies, thus the effects of the measures are still unclear. Besides classical legal-doctrinal analyses, most of the literature is about implementing moral principles (to date the best comprehensive study is still an almost twenty-year-old Canadian paper).

Why do we need transitional justice?

While saying that ordinary justice measures suffice when returning from a hybrid regime back to democracy might sound theoretically appealing, this viewpoint actually ignores the nature of non-democratic regimes (dictatorships and hybrid regimes). Even though transitional justice does not necessarily need to be illegal according to the legal system of the ancien régime (breaking legal continuity, ie revolutions in a Kelsenian sense, can actually be quite risky both from a practical and a legitimacy perspective), it does need to address transitional issues specifically.

The primary and overarching purpose is to avoid relapse, the question is though how sub-goals can help this. Non-democratic regimes do not have the cultural and legal immune systems that are necessary to avoid future relapses, and these immune systems need to be built up. Officials of the ancien régime will not automatically deal with past injustices either (some of them also lack the necessary credibility to do so), you thus need some impulses or personal changes to set the machines into motion. These points hold both for dictatorships and for hybrid regimes.

Unavoidable trade-offs

There are often conflicting purposes regarding transitional justice processes. While the overarching purpose is clearly to avoid a relapse, it is not clear through which mix of sub-goals this can be achieved. Whether it is “justice”, “truth”, “reconciliation”, “stability”, “prosperity”, “legitimacy”, “democracy”, or “the rule of law” (which are all very much open-ended concepts themselves), remains somewhat opaque. Moreover, there are also unavoidable trade-offs between these goals. To illustrate the dilemmas, Jon Elster notes the contradicting expectations concerning trials in transitional justice situations (Closing the Books: Transitional Justice in Historical Perspectives at 212):

• Trials should be speedy, in the sense of starting up immediately […].
• They should be swift, in the sense of being concluded quickly.
• They should be severe, using […] long prison sentences.
• They should be just, both in the substantive sense of punishment according to desert and in the procedural sense of respecting the rule of law.
• They should be thorough, in the sense of convicting a large fraction of the collaborators.
• They should be efficacious, in the sense of using scarce resources as efficiently as possible.

Well, good luck with fulfilling all these expectations at the same time! The best, but admittedly somewhat vague, advice to transitional governments is thus “to pursue as much transitional justice as possible and yet only as much as is prudent”.

The toolbox

It is important to emphasise that transitional justice is not just about legal measures, and especially much more than just trials. The various measures do not exclude each other: they can and should be applied together. Their application can also be quite messy: one person can belong at the same time to the victims and the perpetrators. As the 2004 Report of the UN Secretary-General formulates about the applicable toolbox: “We must learn as well to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations.” This is exactly why we have to rethink transitional justice for hybrid regimes.

There are three main categories of measures in the toolbox: First, measures of Transformative Justice Reshaping the Political Community. These include symbolic ruptures, maybe a new constitution (or rather not, as this can easily re-ignite polarisation in transitional situations, thereby undermining future liberal democracy), institutional reforms, vetting/lustration, and measures aimed at discovering/remembering the past. Second, measures of Restorative Justice Helping Victims. While this can be part of the toolbox, after hybrid regimes this is less central (cf. above the lack of massive and severe human rights violations). Third, measures of Retributive Justice Punishing Perpetrators and Beneficiaries. This can include “naming and shaming”, expropriation and asset recovery (partly through non-conviction-based confiscation, whereby especially Article 1 of Protocol 1 ECHR needs to be considered), vetting/lustration (within the limits of Article 8 ECHR, inter alia), and criminal trials (whereby especially Articles 6 and 7 ECHR need to be respected).

A few concrete pieces of advice on how to avoid pitfalls

In order not to be too academic, I finish with some concrete advice:

• Resist the temptation to do nothing: send a message to the future. At the same time, be aware that vengeance is usually a poor guide for institution-building.
• Trade-offs are unavoidable, so you consciously need to balance and prioritise your goals.
• Have a precise plan – with incrementalism and continuous self-corrections during implementation. Do outreach activities: explain and involve.
• Set traps: officials of the ancien régime have a tendency to betray each other, if they understand that the ancien régime is unlikely to return (“strategic defectors”), and if you give them the opportunity to do so (prisoner’s dilemma in the service of transitional justice).
• Be careful with the very top leader on trial: such a symbolic trial can mobilise hard-core supporters of that leader and can thus easily backfire. In contrast, trials against cronies and against other high officials (excluding the actual former leader) are safer options.
• Deal with property issues.
• Stay legal: respect the ECHR with the right legal technique. Revolutions in a legal (Kelsenian) sense have a high price in the long run.
• Be aware of how polarisation can undermine liberal democracy: avoid ideologically divisive measures as much as possible.
• Show a good example: be transparent in your goals, be fair in the procedure, and most importantly govern well.

Opinions expressed in this article are in personal capacity and do not engage the European Court of Human Rights.

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