The Price of Transitional Justice: A Cost-Benefit Analysis of its Mechanisms in Post-Revolution Phase

AutoreEman M. Rashwan
CaricaCairo University; Hamburg University
Pagine95-142
ll

ll

 

 

U
NVERSTY OF
B
OLOGNA
L
AW
R
EVEW

             
The Price of Transi      
   
E
MAN
M. R
ASHWAN
Eman M. Rashwan (LL.B., LL.M., LL.M.) is Lecturer of Public Law at Cairo University (Egypt), and
currently is a Visiting Lecturer at the Hamburg University (Germany) where she’s pursuing her
Ph.D. in Constitutional Law and Economics. She has worked as an international consultant for
leading international organizations, think tanks, and governmental sectors. This research was
completed with a generous fund by the German Academic Exchange Service (DAAD). I would like
to thank Michael Faure,Stefan Voigt, Edoardo Martino, Nada Maamoun, and the participants ofthe
EDLE seminar at Bologna University,and of the 14th Annual Conference of the Italian Association
of Law and Economics, for their valuable comments. All possible mistakes are however my own.
@eman-rashwan@cu.edu.eg
ID 0000-0002-8830-4169
ABSTRACT
Transitional Justice [hereinafter T.J.] in the post-revolution phase refers to the policies that aim
to deal with the autocratic past-regime violations against its people to achieve accountability and
democracy and promote human rights and the rule of law. To achieve these goals, the United
Nations, within its Rule of Law Initiative, issued in 2010, a set of five mechanisms that work as
guidelines for nations recovering from conflicts. I argue that whatever the mechanism or
combination selected by a society transforming from an autocracy into democracy is, the nature
of these mechanisms requires a trade-off between multiple considerations. To explain this
inevitable trade-off, I go through each mechanism in detail, analyze it from both legal and
economic perspectives, and then provide a basic cost-benefit analysis. I suggest that transitional
justice as a constitutional arrangement requires a holistic approach in its adoption and
application because this initial cost-benefit analysis cannot be standardized for all cases. I also
suggest that transitional justice policies that take into account proportionality, a combination of
different mechanisms, customization of the mechanisms upon the relevant case, and adopting
these policies in the formality of basic or organic laws may be expected to have the most effective
outcomes achieving the goals of T.J. with the least legal complications.
KEYWORDS
Transitional Justice; Revolutions; Constitutional Law; Economics; Cost-Benefit Analysis
JEL CODES
K40, K41
95
THE PRICE OF TRANSITIONAL JUSTICE
TABLE OF CONTENTS
Introduction ............................................ 96
1. The Mechanisms of TransitionalJustice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
1.1. Prosecution Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
1.2. FacilitatingInitiatives in Respect of the Right to Truth . . . . . . . . . . . . . . 113
1.3. DeliveringReparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
1.4.InstitutionalReform ................................. 123
1.5. National Consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
2. General Remarks and Policy Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Conclusion ............................................. 142

Transitioning from autocratic to democratic regimes through revolutions1is a path full
of hard choices. One of the most challenging choices that the parties to the
post-revolution phase have to make is how they deal with the concept of transitional
justice [hereinafter T.J.]. The United Nations [hereinafter U.N.] guidelines on T.J., which
are part of its Rule of Law Initiative, define T.J. as “the full range of processes and
mechanisms associated with a society’s attempt to come to terms with a legacy of
large-scale past abuses, in order to ensure accountability, serve justice and achieve
reconciliation.2This article focuses on violations committed by autocratic regimes
against their people. Consequently, other violations that could be subject to T.J.,
including those in the context of national and international conflicts, colonization, or
any other form of regime transformation that does not include a revolution against an
autocratic regime, are beyond the limits of this article.
1This article defines revolution as a movementby the people that led to a regime change through abolishing
the throwingthe existing government. Thisdefinition is similar to the one used by many prominent scholars
including Huntington, Walt, and Colgan: see Jeff Colgan, Measuring Revolution, 29 C
ONFLICT
M
GMT
. P
EACE
S
CI
.444, 446 (2012).Consequently,all other forms of internal or external disrupts that do not 1) have a group
of the state citizens as their primary component, 2) rise against an autocratic national regime, and 3) manage
to change the governing regime even if temporarily, are beyond the setup of this analysis. These other
forms could include rebellions that did not succeed in throwingthe government, secession from the state to
form a new one, civil war between different national groups, aimless popular implosion, resistance against
a foreign colonizing power, or a coup d’etat by the military. The limits of this article is the analysis of
the post-revolution phase in cases of revolutions against autocratic regimes that aim to democratization.
There could be two scenarios of the regime change in this case: Regime collapse or rupture, and negotiated
transition. However, the differentiation betweenthese two scenarios is beyond this article’s analysis. For
more on the regime ending types, see T
RICIA
D. O
LSEN ET AL
., T
RANSITIONAL
J
USTICE
I
N
B
ALANCE
: C
OMPARING
P
ROCESSES
, W
EIGHING
E
FFICACY
155–59 (2010).
2United Nations, Guidance Note of the Secretary-General: United Nations Approaches to Transitional Justice 2 (2010),
https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf.
96
2021] UNIVERSITY OF BOLOGNA LAW REVIEW [Vol. 6:1
Let us assume that a revolution succeeded against an autocratic regime that had
committed human rights violations against its people - and probably against the
revolutionaries themselves. Moreover, the revolutionaries, the new-rulers (whomever
they are), and the victims (who are every citizen who was directly or indirectly suffering
disutility by the corrupted policies of the past-autocratic regime) share the same
preferences. These preferences are achieving T.J.’s goals, i.e., accountability, justice,
conciliation, and of course, the transformation into a democracy. Obviously, this is the
most optimistic scenario of a post-revolution set-up that rarely applies in reality. First,
both history and rational choice theory tell us that the policy-makers and the victims
would have divergent preferences in most cases. Even if the policy-makers are not part
of the past regime and wish to achieve a radical break with it, this does not mean they
would necessarily aspire to achieve the revolution goals. The new rulers’ ultimate
interest would probably be to care for their self-interest rather than the social welfare
and consequently try to maximize their powers and profits. Second, even when the new
policy-makers have the same preferences as the victims and aspire for social
welfare-enhancing policies, there would still be behavioral biases to expect from both
parties emerging from the asymmetric information between them; The policy-makers
are expected to possess better information about the applied laws, involved parties, and
technical details than the victims (the public).
These concerns and primary dilemmas of T.J. are, however, not the topic of this
research; they constitute the first-degree T.J. dilemmas. This article deals with the
second-degree dilemmas, i.e., the selection among the offered T.J. mechanisms and not
resorting to T.J. in the first place as a notion. It is logical to think that these first-degree
dilemmas would spill over the second-degree mechanisms’ selection process. This
spillover can be traced in part through the analysis given to each mechanism. However,
as long as these second-degree dilemmas are the core focus of this research, the author
performs the following analysis under the previously mentioned assumptions to discuss
the mechanisms in a specific manner away from the primary concerns referred to
earlier. The argument is that even under these assumptions used to simplify the analysis
setup, the tough questions hold; Which mechanisms of T.J. to adopt? Amnesties or
prosecutions? Lustration or integration? Financial reparations or symbolic
compensation through finding the truth?
97

Per continuare a leggere

RICHIEDI UNA PROVA

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT