Max Planck Institute for Foreign and International Criminal Law

The 20th century was an epoch of upheaval in political systems, of transitions and transformations, and of the replacement of pre-democratic systems by civil societies. This development is continuing in the new millennium. Law and justice in transitional or transformational societies are confronted with the task of identifying their role in dealing with the crimes of the previous regime (transitional justice). One possible response to the crimes of replaced or failed regimes is to employ the criminal law. Other responses include compensation, rehabilitation, and the use of truth commissions. This project compares the various responses and addresses as well the issue of whether there is a relationship between the political transitions studied and the chosen responses and, if such relationships exist, what they are. This is an issue of global concern.

The goal of this project is to clarify the role of criminal law when dealing with severe human rights violations in the aftermath of political system change. Against this backdrop, the project studies the function and limits of criminal law in the replacement of political systems and in coming to terms with system crime (Transitionsstrafrecht), including the paths taken in various countries.

The research method is designed to accommodate the transitional processes and responses to system-typical crime in the countries studied. This requires longitudinal studies based on individual country reports from over 20 countries in diverse political and geographical regions.

One finding of this project is that the judicial treatment of the past in periods of transition is dependent in large measure on the “policies of dealing with the past” adopted by the country under study. These policies are influenced by numerous goals and factors – political, historical, personal, economic, etc. – that are unique to each country; however, the specific influence exerted by the political goals and other factors on the precise method of criminal law treatment of the past is not always immediately recognizable. In contrast, it is very clear that coming to terms with the past is not seen first and foremost as the task of law enforcement. At the fore are those political responses that draw lessons from the past. These include new democratic legislation, victim-related responses such as compensation and rehabilitation, as well as institutional reactions such as the creation of specific agencies responsible for addressing the issues that arise during the transitional process.

Most of the the countries studied did not completely forgo prosecution. Prosecution was, however, limited – with great quantative differences among the countries. On the one hand, from a practical perspective, the limitations were based on the participants, offenses, and time frames and, on the other hand, they were the result of concerted exemptions from punishment, such as amnesty, pardon, and the application of the rules of statutory limitation. In some countries, use of these kinds of measures of exemption led to comprehensive immunity.

Against this backdrop, no "best way" of dealing with the past following a political system change can be identified. Each individual country’s approach to transitional criminal law depends on its own particular policies with regard to dealing with the past and on its unique historical context during the transition.