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Why and how transitional justice must replace ordinary criminal justice in troubled societies

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The very concept of transitional justice is that of an institutional system of justice which takes place in transitional circumstances, that is, in irregular situations where one, illegitimate system of institutions is torn down for various reasons for by various means (through government downfall, political revolution, civil war, or a gradual transitional process based on the recognition of a need for different values and institutions). Thus, the concept of transitional justice excludes the use of the laws and institutions characteristic of systemic criminal justice, that is, of the system that transitional justice is supposed to supersede.

The key features of transitional justice are:

  1. Introduction of quick procedures and quick execution of sentences,
  2. The accused are typically mainly those who had used to prosecute and try others, namely the members of the previous instituitional and judicial system,
  3. In most cases the death penalty is necessary, as it sends a message of public condemnation of the very values the convicted persons stand for,
  4. Responsibility is primarily see as based on collective, rather than individual identities, namely whole classes of individuals are considered criminal and membership in those classes is the criterion for conviction, where any exceptions must be argued for. This is how the Nazi perpetrators were mainly prosecuted and convicted at Nuremberg after World War II: a membership in the Nazi establishment and active collaboration in the commission of crimes was the criterion for the condemnation to the death penalty.

In transitional circumstances, members of the establishment, specifically members of the judiciary and the prosecution (all judges and all prosecutors) are considered prima facie guilty, if the judiciary is systemically corrupt. Similarly, all members of the social services are considered guilty if the social services are widely known to have acted in favor of the political government and against the vulnerable members of society, especially if the social services have been responsible for the deaths of children and family tragedies. Any exceptions to the general rule of guilt or responsibility of everybody involved in these classes of individuals must be specially argued for.

This, in history, has led to massive condemnations, mass imprisonment and mass executions as a part of revolutions and of the transitional justice characteristic of these revolutions. Consequently, if a social change comes by through a revolution, the mass convictions are a necessary means to send the message that things are changing radically, and at the same time to visit their deserts upon those who have traded in child custodies, in the property of the elderly, or who had degraded the judicial functions and profession to serving what is widely perceived as injustice. The latter is typically witnessed by a low level of public confidence in the judiciary. If the judiciary is at the bottom of the hierarchy of public confidence in institutions, then that judiciary must be dealt with through transitional justice, because otherwise the faith in institutional justice will not be able to be re-established.

Russia today has offered a moderate model of transitional justice, exemplified in the criminal justice system of the Lugansk and Donjeck People’s Republics (formerly parts of Ukraine), where responsibility is still established individually, and not ascribed to entire classes of typical perpetrators, however the punishment frequently includes death and the proceedings are swift and executions prompt. This allows the new political community to churn out as many sentences as possible in a short time and establish a value system, along with a system of confidence in institutions and their clearly stated policies, that will allow the society to progress towards a simple and strong identity. Such an identity is required for the subsistence of troubled societies, whether they are in a war, or marred by organized crime and political authoritarianism and corruption.

Transitional justice is mass justice; it is a semantic tool to show that the perpetrators of the most heinous crimes against the citizens, such as members of the judiciary and members of the social services (as well as other bearers of public power) must be held responsible for their crimes at the most severe end of the range of penalties and at the same time at the most fast track end level of criminal justice process.

The coming nuclear conflagration within the conflict between NATO and Russia over Ukraine will set of a chain of revolutions with the concomitant transitional justice outcomes that must be seen in light of the historical and methodological principles that justify mass justice as part of a theory of revolutions. There is a Nitzschean element to security catastrophies such as a nuclear war, and at the same time to the very logic of revolutions, of which transitional justice has always been a necessary part, ranging till the most recent transitional mechanisms at ICTY at the Hague and the International Criminal Court, however the most methodically advanced and innovative system of which is that in the Lugansk and Donjeck People’s Republics.

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