31 August 2017
Chloe Hodkinson graduated with an upper second class LLB Law degree in July 2017, and will embark on an LLM in International Law at the Law School from October 2017. Her dissertation was supervised by Professor James Sweeney.

My dissertation examined to what extent, if at all, transitional justice played a role in the conversion from an oppressed society to democracy within the context of the communist regime. Transitional justice is still a relatively new phenomenon with much debate surrounding the wording of the term itself, what it entails, and its interpretation by legal bodies. It was not the purpose of the dissertation to attempt to construct a “correct” definition of transitional justice, but to examine the term and attempt to place it within the context of its practical use, and whether such a concept offers a positive contribution to a forming democracy.  Through examining varying legal definitions and academic opinion, I concluded that for the purposes of my dissertation, transitional justice was to be understood as a variety of mechanisms which aid in the coming to terms with the past. However it is not simply a legal tool, as it goes beyond simple crime and punishment, and seeks reconciliation, making it unique from “everyday justice.”

The focus of my dissertation was examining to what extent, if any, transitional justice had been utilised in order to assist former USSR states in transitioning into democracies, and to come to terms with the recent horrors of their past. It focused particularly on Russia and the Baltic States, due to their vastly different attitudes towards adopting transitional justice. It became apparent that Russia’s attempts to adopt transitional justice in order to come to terms with their past were little to none, whilst the Baltic States had been by far the most enthusiastic in pursuing transitional justice out of all the successor republics. The differing approach in these countries regarding adopting transitional justice is due to a complex hybrid of political, cultural, historical, and international factors. Rooted in the hearts of each state’s decision to pursue or ignore transitional justice lay the foundations on which the very need for transitional justice stood: how the existence of the communist regime came to be a part of each state. For example, the Baltic States viewed their experience of the communist regime as an illegal occupation resulting from the Molotov-Ribbentrop Pact, meaning that the collapsing of the regime was seen as liberation after years of illegal foreign oppression. However, Russia was the origin and centre of the communist regime across Europe, and rather than its collapse being a liberation, it was more of a failure for losing influence, and was the target on which to focus blame for the crimes committed during the communist era. Therefore, to allow transitional justice to flourish would also cause an influx of inward accountability for Russia, which could be devastating to a country which has already failed economically and politically, to also have its national pride crushed, making it understandable as to why transitional justice never became fully operational. This proved to be crucial in the examination: transitional justice cannot be successful if it is not supported or even wanted by the people or politicians.

My research into transitional justice revealed that transitional justice is by no means a perfect tool. A key flaw is its natural conflict with the rule of law – where a state seeks to come to terms with the past, it’s natural for people who suffered at the hands of the previous regime to demand justice, which unfortunately conflicts with the rule of law objecting to retroactive justice. Another issue of equal importance is the economic and political requirements needed for transitional justice. As Russia demonstrated, without a political will to adopt transitional justice, it will never be fully utilised, and without a stable economy to support many of the transitional justice procedures, such as court trials and compensation, its impact will be limited. Much of the research conducted on transitional justice regarding its understanding and critiques of countries who have ‘failed’ to utilise it stems from a Western perspective. As I suggested in my dissertation, perhaps it is not that Russia has failed to implement transitional justice, but rather that it has not become a Western democracy. The Baltic States are repeatedly praised for transitioning into a stable democracy, but as my dissertation considered, perhaps it is actually praised for becoming a Western democracy. This would mean that transitional justice would not be compatible with any other forms of democracy or political structuring. 

Whilst there are flaws with transitional justice, regarding its conflict with the rule of law, the lack of clear definition, and practical inadequacies, my research and dissertation found that it still had a significant role to play for transitioning societies. It is not so much a tool for achieving success, but rather for preventing complete failure. Where it has been utilised, there are issues and problems that arise, but a state which does not adopt transitional justice at all is at a far greater risk of relapsing into the old regime. My dissertation concluded that the role of transitional justice is to mitigate the wrongs of the past, rather than to put it all right.