Introduction

Summary

States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. The legal system may be in need of rebuilding or reinvention to bring a climate of lawlessness to an end and create the conditions for a more stable future. The culture of impunity, lack of accountability, lack of rights protection, and, more generally, lack of respect for the rule of law that may have been pervasive in societies before undergoing the transition from autocracy to democracy often persist during the transition period itself. To the extent there is law, local ‘strongmen’ may be above it, or the law is co-opted by power to serve its ends. During the transition from violence or oppression, the pre-existing legal system, in whole or in part, may be temporarily suspended or permanently dismantled, and with it any semblance of the rule of law.

The rule of law challenges that characterize this period may include generalized insensitivity toward the plight of victims of the conflict or the deposed authoritarian regime; major criminals may get away with reduced sentences or outright impunity, ringleaders of criminal enterprises may escape their due because domestic legislation is not adequately equipped to address such modes of responsibility as command responsibility or joint criminal enterprise; the economic and social rights of marginalized groups may be insufficiently protected; judicial review of executive decisions may be non-existent; and the political branches may routinely interfere with the affairs of the judiciary.

During transition from one system to another, different layers of law may moreover be operational at the same time, creating confusion as to which legal standard should apply. Such heterogeneity of law, or legal pluralism, hardly furthers the goal of legal certainty so essential for dealing with past abuses onthe basis of the rule of law as opposed to arbitrariness. If there is no continuity of the domestic legal system, the break with the troublesome past may entail impermissible retroactivity of new law. The new regime may also need to grapple with abuses that were committed under color of law in the old regime, by persons obediently doing their duty.