44 J.L. Pol'y & Globalization 1 (2015)

handle is hein.journals/jawpglob44 and id is 1 raw text is: 


Journal of Law, Policy and Globalization                                                        www iiste.org
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)                                                            I
Vol.44, 2015                                                                                             lSE

                     A New Paradigm of Transitional Justice

                                             Dr. Judhariksawan
           School of Law, Hasanuddin University, Perintis Kemerdekaan KM 10 Makassar, Indonesia

Abstract
The main thesis of study of Transitional Justice is how response of State, notably the successor regime, towards
demands for justice from the victims of gross violation of human rights when transformation by revolution or
reformation of authoritarian government to democracy occurred. A new paradigm shows that democracy as
conductor to prosecute is not the final terminal of Transitional Justice.
Keywords: Transitional Justice, Democracy, Human Rights

1. Introduction
Humanjourney in the life of the state is sometimes interpreted as an absolute power which is assumed to be able
to control the variety, if possible, the whole power of other individuals. Then triggered the rise of the dictatorship
and totalitarianism into a shape of government. When it came to power, the authoritarian regime without
hesitation commits abuse of power in order to maintain the solidity and hegemony, especially against political
opposition. Various kinds of heavy violations of human rights are committed and often justified by the
manipulation of law and impunity mechanism
         The dark history of the fate of the people oppressed by their own government has also degrading human
dignity simply due to maintaining the power. But resistance to overthrow their government outrages, in many
countries, show success. When the time authoritarian regime overthrown, the successor governments faced the
question: how to manage the legacy of past crimes?
         Investigation of the crime of predecessor regimes often show up in the transition from authoritarian
rule towards democratic governance. This demand is not only the responsibility of the state to provide justice for
the victims and their families, but it has significant implications politically and legally. Prosecutions can be a
tool of political legitimacy for building people's trust in government, can support a successor and its political
plans to build a democratic government. While the legal capacity, the ability of successor to prosecute
perpetrators justify the involvement of the rule of law and end up the cycle of impunity that keeps protecting
predesesor during his reign.

2. Transitional Justice
Transitional Justice 1 concept basically doesn't not offer the best mechanism for settling disputes in the past for
countries undergoing the process of transition of government, from the repressive towards a democratic system.
But on the contrary, the Initiator of the concept of Transitional Justice learn how the state to solve it. So that this
doctrine was interpreted as a study of the remarkable ways (extra-ordinary measures) which have been used by
the state to face crimes against humanity in the past. Each state and transition has paradigms and different
problems, which require different approaches. The point is: how the state can provide justice for the victims,
who appeared in transition.
         The Study of Transitional Justice collects various legal actions carried out by the successor
governments in many countries, this analysis describes that most transitioning countries have the dilemma of the
rule of law and legal validity. How the new government apply the law against any past state crimes, while the
old regime is enjoying impunity for the legal system at the time. Even the law had legitimized all actions he has
done.
         Some of the successor governments choose law as a mechanism for justice for victims, means a
criminal court. In the context of Transitional Justice, the courts are often seen as a moral obligation of the
successor government and also pointed out that democracy must be formed based on the rule of law, to make
every one equal before the law. According to Ruti G. Teitel, the other main of the aim of trial is to deterfuture
crimes, either as a specific deterrent to the same criminals, or as a general deterrentfor society.2 Adherence to
the principles of legality and validity of the law is a complicating factor in the implementation because the
purposes of the principle of legality are to enhance the certainty of the law, provide justice and fairness for the
accused.3 In transition period, abnormal atrocities seem to demand abnormal measures.4

1 Term of Transitional Justice first published by United States Institute of Peace (USIP), Washington DC, USA by three
books of Neil J. Kritz, Transitional Justice: How Emerging Democrasies Reckon With Former Regimes.
2 Ruti G Teitel. 1990. How Are The New Democracies Of The Southern Cone Dealing With The Legacy Of Past Human
Rights Abuses?
See Bassiouni. 1999. Crimes Against Humanity In International Law. p. 124
See Alexander Boraine, A Project on Transitional Justice (www.nyu.com).

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