Human Rights in Law, Politics and
Society
Lecture 5: Democratization and Transitional
Justice
Steven Greer
Overview
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Part one: Democratization
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What is ‘democracy’?
A brief history
Modernity and democratization
Democracy as consultation
Democracy, internationalization and globalization
Democracy and human rights: congruence and conflict
Part two: Transitional justice
• What kinds of transition?
• Transitional justice and democratic transitions
• post-2nd World War
• post-Cold War
• Key justice issues in democratic transitions
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Part three: Conclusion
1.1. What is ‘democracy’?
• Demos (δήμος) - “the people”
• Kratos (κράτος) - “rule/strength/power”
• ‘Democracy’ = ‘rule/strength/power of the
people’
• Democracy is rare and fragile in history requiring
uncommon social and political conditions
• never complete
• vulnerable to ‘de-democratization’
1. 2. A brief history
• Ancient Greek city-states 5th/4th century BC
• ‘Direct democracy’
• Athenian ‘demos’
• Citizenship: only free Athenian men
• 250,000 inhabitants: 30,000 citizens (5,000 active)
• No separation of powers, no defined human rights, no
legal restraints upon actions of assembly
– popular sovereignty could mean popular tyranny
– juries of 500 (1,000 for capital/other serious offences)
selected by lot: eg trial of Socrates (399BC)
– most public officials selected by lot: generals & some
officers elected
1. 2. A brief history (continued)
• Some celebrated pre-modern ‘democracies’
– Icelandic Althing; Iroquois confederacy; Swiss cantons
• Early modern period: democracy gets bad press - mob rule
• Democracy and the liberal revolutions of 17th & 18th centuries
• No taxation without representation
• Liberalization/constitutionalization precede full democratization
– constitutional rights as limits on exercise of public power
• The constitutional settlement
– Terms of political association
– Separation of powers: executive, legislature, judiciary
– Franchise
» Gender qualification (only men)
» Status qualification (only free men)
» Property qualification (only rich free men)
» Ethnic/national qualification (only rich free English etc men)
1. 3. Modernity and democratization
• Modernization produces
• Distinct forms of authoritarianism: fascism and communism
• Optimum conditions for democracy: transforms what it means
• Scale, complexity and bureaucratic character of modern states
• Shift from ‘direct’→‘representative/deliberative’ democracy
• Party systems and interest groups: class, ethnicity, region, identity
• Complex relationship between representation, popular sovereignty,
consultation and accountability
• Four leading conceptions of democracy (Tilly)
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Constitutional: focus on laws regarding political activity
Substantive: focus on quality of life/type of politics promoted
Procedural: focus on elections
Process-oriented: focus on wide range of processes
– eg effective participation; voting equality; control of agenda etc
1. 4. Democracy as consultation
• Tilly
• ‘A regime is democratic to the degree that political relations
between the state and its citizens feature broad, equal, protected
and mutually binding consultation.’ (Democracy (2007), p. 14)
• Citizens - right to be consulted
• States - obligation to seek approval
• Strong resonance with ‘no taxation without representation’
• Factors integral to democracy and democratization (Tilly)
• Enduring relationship of trust between rulers and ruled
• State does not promote ‘categorical inequality’
• eg based on gender, race, ethnicity, class, caste
• Neutralization of other autonomous coercive power centres
• eg war lords, patron-client chains, private armies, religious
institutions
1. 5. Democracy, internationalization and
globalization: int. human rights law
• UDHR 1948 & ICCPR 1966
• Contain classic civil and political rights: life, liberty,
freedom from torture etc, freedom of association,
expression, peaceful assembly etc
• Art 21 (UDHR)/Art. 25 (ICCPR): right to participate in
government through free periodic elections subject to
secret ballot and universal suffrage
• Almost half world’s states (out of 192) are democratic
but only 28 are ‘full democracies’ (Economist (2006)
• In these instruments ‘democratic society’
operates as limitation upon rights (to be
explained later)
1. 5. Democracy, internationalization
and globalization (continued)
• Democracy and international institutions
• Inter-state institutions (by definition) cannot be directly
democratized: site for democratization remains the state
• Debate about democratization of international financial
institutions deferred to ‘Development’ topic
• Globalization
• Economic globalization potentially threatens some national
democracies in developing world
• corrupt elites in collusion with MNCs
• Other dimensions tend to spread democratic ideal
• international political and legal institutions
• western culture and IT
• power of west: democracy at home but not always abroad
1. 6. Democracy and human
rights: congruence
• Democracy is good for human rights
• Human rights can only fully thrive in democracies
because, by definition, non-democracies fail to respect
democratic rights
• Human rights are good for democracy
• Human rights set conditions/govern framework for
democratic representation, consultation, and
deliberation
• Particularly true of civil & political rights
• But also true of other rights
• eg effective consultation etc requires educated electorate
1. 6. Democracy and human
rights: conflict
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Few human rights are absolute: virtually all limited by public
interests/considerations of the common good
• Derogable and non-derogable rights (eg ECHR; similar in ICCPR)
• all ECHR rights can be suspended in time of war or public emergency
threatening life of nation except right to life; freedom from torture,
inhuman or degrading treatment or punishment; freedom from slavery
and servitude; freedom from retrospective criminalization/increase in
punishment (Art. 15)
• Suspension must be ‘strictly required’ given threat
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Conflicts between ECHR rights and common good
• All other ECHR rights subject to wide exceptions (plus right to life)
• Provided rule of law, democratic necessity and proportionality tests met
• eg conflict between liberty and national security (to be discussed in
‘Terrorism’ topic)
2. 1. Transitional justice: what
kinds of ‘transition’?
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Continuity and change
• In even the most thorough revolutions some things stay the same
• eg culture often remains constant while institutions/official ideology change
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Micro and macro
• Political: institutional/ideological
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eg one-party authoritarianism → multi-party democracy
• Social: structural: eg feudalism → modernity
• Cultural
• French Revolution
– decimalization of the working week
– renaming months of the year
• Chinese Cultural Revolution
– war on almost every feature of ancient regime: Confucianism, religion etc
– loyalty to family superseded by loyalty to state
– red traffic lights mean ‘go’ not ‘stop’
2. 1. What kinds of ‘transition’
(continued)?
• How to characterise old and new?
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Authoritarianism → Democracy
Tradition → Modernity
Feudalism → Capitalism/Modernity
Conflict → Peace
Colonial →national self determination →’post-national’
• Transformation in conception of justice
• Sociological: decisive shift in legitimation
• in dominant ideology, institutions, distribution of public/private
power
• Normative: move to closer realisation of universal values
• Democracy; human rights; rule of law; democratically regulated
market
2. 2. TJ and democratic
transitions: post 2nd world war
Era
Region
1st wave
1940s
W. Europe
E. Europe
2nd wave
1970s
S.Europe
(Spain, Portugal
Transition
Occupation→liberation
Fascism →democracy
Fascism →communism
- Purges (W&E)
-Trials of
collaborators (W&E)
- Nuremberg (W&E)
Military dictatorship →
Democracy
- Purges (P & G)
- Instit.forgetting
Greece)
3rd wave
1980s
Latin America
Justice
(Spain)
Military dictatorship→
Democracy
-Truth commissions
- Trials in Argentina,
Bolivia & Nicaragua
2. 2. TJ and democratic
transitions: post Cold-War
Era Region
Transition
1990s
E. Europe
Comm.→ Democ.
→ Arrested Democ.
Property
Purges (‘Lustration’)
Trials of border guards
Truth commissions
ICTY
1990s
Africa
S.Africa
Rwanda
Apartheid →Democ.
Genocide →Peace
Truth commissions
ICTR
Dictatorship-Islamic Democ?
Purges
Trials of Ba’athists
2000s
Afghanistan?
Iraq?
Justice
Georgia (Rose, 2003), Ukraine (Orange, 2004), Lebanon (Cedar, 2005)
2. 3. Key justice issues in
democratic transitions
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Structural/institutional universals
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Democratization, constitutionalization, judicialization, civilianization
Transitional justice dilemmas/complementarities
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Goals
• ‘Justice’ or ‘reconciliation’?
• Closure or remembrance?
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Policies
• Punishment or pardon? domestic/int. criminal trials or amnesties?
• Purges (‘lustration’) or official continuity?
• Truth commissions or ‘institutional forgetting’?
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Key factors affecting character of transitional justice
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National factors are most important
• Institutional history of particular country
• Character of authoritarian regime
• Character of transition
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Role of international agencies and processes
2. 3. Institutional history and character
of pre-democratic regime
• Institutional history
• Positive experience of democracy prior to authoritarian
regime→better chance for democ., eg post-Soviet central
Europe
• Exception: Spain. Successful democ. transition (1970s) despite
complicated experience of democ. in 1930s
• Character of authoritarian regime
• How repressive?
• Intensive, physical, concentrated on regime’s enemies (eg extra
judicial killings, disappearances etc)→punish culprits
• Low intensity, psychol.,systematic, pervasive (eg Cold War E.
Europe)→who to punish?
• How amenable to reform?
• Revolution or reform: continuity and change?
2. 3. Character of democratic
transition
• Revolutionary transitions: war and revolution
• Problems
– violent, destructive, in humane
– how to govern while constructing new order?
• Opportunity: wider choice of TJ initiatives
• Negotiated, ‘pacted’, reform transitions
• Balance of power between new and old: limits scope for purges & trials
• ‘Transitions by extrication’ (Przeworski): pro-reform element in old regime
negotiates with opposition: legacies of authoritarianism endure
– successful in Spain: unsuccessful in Chile.
• Role of armed opposition: limits scope for trials→general amnesty
• Role of civil society, eg churches - Protestant churches in E. Germany at end
of Cold War; paradoxical role of Catholic Church in Latin America
• Stalled or reversed transitions (‘de-democratization’ (Tilly))
• Old regime uses transitional process to regroup and stage come-back
especially if opposition goals are too ambitious.
2. 3. Role of international factors
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Reconstruction guided by occupying power: Germany & Japan post
2nd WW
• Foreign ideological allies of authoritarian and transitional states
• USSR supported communist regimes, eg Cuba, Afghanistan
• USA supported non democ. anti-communist regimes during Cold War
and democratizing states in Central/Eastern Europe post-Cold War
• International civil society, eg NGOs, religious organisations
• Role of Catholic Church at end of Cold War (Poland)
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International human rights law
• Largely irrelevant to transitions in 1970s
• More significant from 1980s onwards
• Point of reference – constitutionalization, particularly for transitional judiciary
• Transition itself subject to human rights constraints, eg respect for due
process in purges and ‘political’ trials
3. Conclusion
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Democratization
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Scale, complexity, and bureaucratic character of modern states complicates
relationship between exercise of public power, popular sovereignty,
accountability, participation and consultation
• Compounded by internationalization and globalization
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Human rights and democracy
• Congruence: hr are good for democracy and democracy is good for human rights
• Conflict: human rights capable of being restricted in pursuit of common good
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Justice in democratic transitions (‘transitional justice’)
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Structural/institutional universals
• Construction of liberal democratic constitutions/institutions and democratically regulated
markets
• Compliance with international standards, especially human rights
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Everything else is context specific
• Key: what works best for future of particular society in question
• Subject to national negotiation and compromise