Transitional Justice - Setting Aside Rule of Law in Order to Reach the Rule of Law

Abstract: Transitional justice is a term and concept which describes how countries deal with large-scale human rights abuses through different judicial and non-judicial measures in order to achieve reconciliation and hold perpetrators accountable. Transitional justice as a concept was born out of practice as a response to how countries in the 1980–1990s dealt with large-scale abuses committed by the earlier regime in the countries’ transition from authoritarian rule towards becoming a democracy. The purpose of the thesis is to systemise and analyse the term transitional justice using the rule of law as a tool of analysis, since transitional justice is considered to be enhancing the rule of law and democracy based on the rule of law is considered to be on the other end of the transition. This is utilised through the help of the legal dogmatic and legal philosophic methods. In short, transitional, the first word of the term, can be described as the movement from an authoritarian regime towards a democracy. There is no single definition or opinion for how long a country is in transition, neither for how long a country can use transitional justice measures. The understanding of justice, the second word, encompasses both judicial and non-judicial measures, such as criminal trials and truth commissions. In general, only a fraction of all perpetrators are prosecuted, often due to the strength of the old regime which might refuse to let go of their power in order to avoid prosecutions. In these situations, amnesties are often used, in order for the country to transition. Lastly, a discussion is held regarding if transitional justice can be considered a legally useful term. It is deemed that transitional justice is not precise enough and too intertwined with the political situation for individuals to be able to correctly interpret it, thus being far too vague to serve as a legally useful term.