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28 Man. L.J. 113 (2000-2002)
Transitional Justice: Fundamental Goals and Unavoidable Complications

handle is hein.journals/manitob28 and id is 121 raw text is: Transitional Justice:
Fundamental Goals and
Unavoidable Complications
A VIGOROUS DEBATE HAS EMERGED in recent years in international human
rights law literature regarding what is often referred to as the issue of
transitional or retroactive justice. This refers principally to the question of
whether and how fledgling democratic governments ought to call to account
those accused of having committed gross violations of human rights in the pe-
riod preceding the democratic transition. Many argue that new democracies
should always take an aggressive approach to accountability by adopting policies
and programs that emphasize punishment and condemnation of perpetrators.
Others insist on a lenient approach to accountability, generally recommending
policies and programs which emphasize forgiveness and reconciliation. Finally,
some recommend a moderate approach regarding accountability, generally fa-
vouring policies and programs which seek to balance a broad combination of
goals including, inter alia, punishment, reconciliation, and the establishment of
an accurate historical record.
The position asserted in this essay is that it is dangerous to recommend any
one of these approaches in the abstract. While there are certain fundamental
transitional justice goals that ought to be considered in any new democracy, de-
termining which goals can or should be implemented involves many difficult
and contradictory considerations. For example, in many cases, transitional gov-
ernments are effectively forced to choose between justice and the continuation
of peace, or justice and the continuation of democracy. In addition, transitional
justice policy making often involves a variety of agonizing trade-offs and oppor-
BA (McGill), LL.B (Ottawa), LLM (Columbia). Mr. Freeman is currently a Senior Asso-
ciate at the newly-established International Center for Transitional Justice in New York
City. He previously worked with the U.N. Office of the High Commissioner for Human
Rights and as a lawyer in private practice.

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