Vol. 16 No. 10 (October, 2006) pp.797-801

RETRIBUTION AND REPARATION IN THE TRANSITION TO DEMOCRACY, by Jon Elster (ed.). New York, NY: Cambridge University Press, 2006. 352pp.  Hardback.  $85.00/£48.00. ISBN: 0521829739.

Reviewed by Julio Ríos-Figueroa, NYU School of Law. Email: jrf246 [at] nyu.edu.

Transitional justice consists of both the processes of retribution against the leaders and agents of former autocratic regimes and the processes of reparation for their victims. These processes involve a sequence of crucial interdependent decisions starting with whether to come to terms with the past at all. It is not an easy choice. Suppose that the new regime decides to prosecute past abuses. Should trials be conducted within the legal system, assuring to the extent possible the guarantees of due process, or should they occur outside the legal system in a more political and expedient way? Should transitional justice target all perpetrators, only the leaders, the agents, or a mix? How should the perpetrators be punished? Should reparation include only the living victims of past crimes or also their heirs? Should reparations be made to individuals or collectivities? How much is owed to the victims? Can we assess how the victim would be today had her rights not been violated in the past? All these questions involve real human dramas as well as fascinating theoretical and political dilemmas. Jon Elster, once again, has produced a valuable contribution to the debate in this superb collection of enjoyable and rigorous essays.

The book is divided into three parts. It also includes an introduction and a conclusion written by the editor, who also authors one of the two excellent chapters of the first part devoted to general issues of  reparation (by Jon Elster) and restitution (by Tyler Cowen).  The introduction and the first two chapters provide the analytic framework used in the following ten empirical chapters equally distributed between the second and third parts. Those two parts are dedicated, first, to the cases of Germany and German-occupied countries after 1945, and second, to cases in Latin America, post-communist Europe, and South Africa. Unlike many edited volumes, in this one the reader enjoys to a greater extent the intellectual dialogue between the authors. The analytical framework, applied in different degrees in the rest of the chapters, is itself the product of the analytical power of the editor enriched by the theoretical and historical insights of the authors. This is better appreciated taking into account that the present volume is not only the product of a seminar held at Columbia University but also a companion to Jon Elster’s (2004) own recent monograph on transitional justice.

Despite the title, most authors deal with retribution against wrongdoers, which include trials, purges, and other measures. Only two chapters address reparation to victims, one by Tyler Cowen who addresses the conceptual problems of “undoing past wrongs” and the other by Aviezer Tucker who discusses different measures of [*798] rectification in post-communist countries. The empirical chapters are inherently comparative, whether the comparison is between zones within post-1945 Germany (David Cohen’s chapter) or between two or more countries (as in Carlos Acuña’s chapter on Argentina and Chile, and Tucker’s chapters on post-communist countries). A total of thirteen countries in different “waves” of democracy are analyzed: Germany and German-occupied countries post-1945 (Austria, Belgium, Denmark, France, Hungary, the Netherlands, Norway); South America, post-comminist countries, and South Africa in the last two decades of the last century (Argentina, Chile, Czech Republic, East and Unified Germany, Poland). In addition, illustrations and examples from several other countries can be found throughout the book. The volume thus compliments recent cross-national studies on transitional justice (e.g. Roht-Arriaza and Mariezcurrena 2006; Kaminski, Nalepa, and O’Neill 2006; Hayner 2002; McAdams 1997).

In the introduction, Elster classifies the cases discussed in the book by distinguishing autocratic regimes and processes of transitional justice according to whether they are endogenous or exogenous. For instance, the autocratic regime may be exogenous, as in the countries occupied by Germany during the Second World War, or endogenous as the military dictatorships in Argentina and Chile. Similarly, transitional justice can be exogenous, as in the case of the Nuremberg trials of Nazi leaders and institutions carried out by the allies, or endogenous as in the case of South Africa where a country has to come to terms with itself. In addition, Elster distinguishes between actors, their motivations (emotions, interests, and reason), institutions, and context (economic, legal, and political) in order to explain the variation observed in different historical cases regarding answers to the questions posed at the beginning of this review. His analysis regarding emotions, and his analytical effort to link them to actions, taking into account other motives such as interest and reason, is highly interesting and deserves special credit. The analytic framework is then used to study the sequence of decisions involved in processes of transitional justice: whether to come to terms with the past at all, whether to carry out legal or political trials, or administrative purges, and subsequent decisions carefully spelled out in Offe’s and Ulrik’s chapter.

Take, for example, the decision on whether to prosecute the wrongdoers within or outside the legal system. A formal legal trial presupposes an element of risk to those involved, derived from the judge’s independence and his preparedness to evaluate the unfolding of both the official and the defendant’s story in the light of a norm of conduct. In transitional justice some elements of a formal legal trial, such as independent and/or competent judges, may be absent. This was the case in post-communist countries where, as Tucker notes, there were neither lawyers nor judges with proper training. In post-1945 Germany, David Cohen argues, there were competent lawyers and judges, but they were not trustworthy because of their collaboration with the Nazi regime. Even with competent and independent judges, [*799] transitional justice processes are plagued with procedural obstacles, the most salient being the non-retroactivity of legislation. Because of these problems, when democratic elites engage in transitional justice to signal that in the new regime “nobody is above the law,” they should be aware of what Bärbel Bohley, a former East German dissident, concluded: “We wanted justice but we got the rule of law (Rechtsstaat) instead.”

On the other hand, trials outside the formal legal system presided by lay judges may be quicker and more efficient, but their legitimacy and consequences vary depending on context. When time is of essence, political trials may actually prevent a bigger problem. For instance, Henry Rousso argues that in occupied France where hate and desire for revenge against collaborators were strong, ad hoc courts-martial provided swift trials and executions that actually prevented the multiplication of uncontrolled executions by cooling down passions. Similarly, to deal with collaborators General De Gaulle allowed the creation of special Courts of Justice, consisting of one judge and four juror members of the resistance, avoiding in this way the less legitimate military tribunals and the burdens of due process. In Belgium, unlike France, members of the resistance were not included in military tribunals. However, of course, political trials are difficult to justify in a democracy, and their abuse may backfire and weaken the new democratic regime.

Other, structural, conditions affect the choice of legal versus political trials in transitional justice processes. Some considerations have to do with the nature of the autocratic regime and the strength of the demand for transitional justice. The demand for retribution may be weaker, as in post-World War II Austria and Hungary, according to István Deák, or stronger as in Belgium and the Netherlands in the same period according to Luc Huyse. A weaker demand may allow for a more lengthy and cumbersome fully legal process. Another consideration is the strength of the outgoing autocratic elite. In Czechoslovakia and Poland, as Tucker shows, the strength of post-communist elite waxed and waned vis-à-vis that of non-communist elites, and decisions regarding how to conduct trials and purges followed these movements in the balance of power. In Argentina and Chile as in South Africa, Carlos Acuña and Alex Boraine, respectively, observe the armed forces remained considerably strong and were able to extract compromises from the new democratic governments. In the Argentinean case, interestingly, choosing the formal criminal justice system backfired, since independent judges did not comply with the compromises that the new democratic government had made with the generals regarding the limited scope of the trials. The result was a new military threat and instability of the nascent democracy.

Some issues considered only briefly in the analytical framework may deserve more attention, given their role in various empirical cases, such as the economic and the international context. Regarding the latter, for instance, the geopolitics imposed by the Cold War [*800] affected in different ways the intensity and the scope of transitional justice in post-1945 Germany and German-occupied countries, as well as in communist countries behind the “iron curtain.” The international dimension, this time in the somewhat different form of international jurisdiction, affected the coming to terms with the past in Argentina and Chile where the prosecution of Augusto Pinochet was initiated by the Spanish judge, Baltasar Garzón. Finally, although formally out of the scope of a volume devoted to transitional justice episodes in the twentieth century, the international dimension is also crucial in the processes heard by the International Criminal Tribunals for Rwanda and the former Yugoslavia, as well as the ongoing trial of Saddam Hussein in Iraq.

Regarding the economic context, some remarks in different chapters may be interesting hypotheses for future research. Transitional justice processes occur in vastly different economic circumstances, as István Deák’s comparison of Austria and Hungary illustrates. In this connection, David Cohen points out that the demand for transitional justice, in Germany and other countries, decreased when economic conditions improved. Is it also true that, when economic conditions get worse, the demand for transitional justice increases? Although Tucker’s analysis of post-communist countries and Acuña’s account of Argentina suggest that this is the case, there is still the counter example of Chile, where transitional justice gained momentum as economic conditions improved. The political strategies of the leaders, especially in protracted transitional justice processes, as those in Chile and Argentina, may have a role here. For instance, in the ongoing Argentinean case, President Nestor Kirchner might be using transitional justice as a strategy to divert attention from pressing economic conditions. Thus, economic conditions seem to deserve more attention regarding its role on the emotions, interests, and the decisions for retribution against perpetrators and restitution to victims of past abuses.

In sum, this is a highly enjoyable, analytically rigorous, and historically rich collection of essays on a fascinating, timely, and consequential topic. It is an important contribution to the already substantial and growing literature on transitional justice. Processes of retribution and reparation in the transition to democracy provide a privileged window through which we can clearly see how closely intertwined law and politics are. The chapters in this volume engage the reader in a continuous dialogue between theory and concrete examples, back and forth. As Elster notes, transitional justice is a laboratory for the “empirical study of justice,” namely how different normative conceptions of justice play out in real historical circumstances. I would add that it is also a laboratory for the empirical study of democratic theory where it is possible to analyze the dynamics, strengths, and limitations of its cornerstones, such as the separation of powers and the rule of law.

REFERENCES: [*801]

Elster, Jon. 2004. CLOSING THE BOOKS. TRANSITIONAL JUSTICE IN HISTORICAL PERSPECTIVE. New York: Cambridge University Press.

Hayner, Priscilla B. 2002. UNSPEAKABLE TRUTHS: FACING THE CHALLENGE OF TRUTH COMISSIONS. New York: Routledge Kegan Paul.

Kaminski, Marek, Monika Nalepa, and Barry O’Neill (guest editors). 2006. “Normative and Strategic Aspects of Transitional Justice” 50 JOURNAL OF CONFLICT RESOLUTION (Special Issue) 295-302.

McAdams, James (ed.). 1997. TRANSITIONAL JUSTICE AND THE RULE OF LAW IN NEW DEMOCRACIES. Notre Dame, Ind: University of Notre Dame Press.

Roht-Arriaza, Naomi, and Javier Mariezcurrena (eds.). 2006. TRANSITIONAL JUSTICE IN THE TWENTY-FIRST CENTURY: BEYOND TRUTH VERSUS JUSTICE. New York: Cambridge University Press.

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© Copyright 2006 by the author, Julio Ríos-Figueroa.