As an interdisciplinary field of scholarship, transitional justice is still in its pre-theoretical stage, focusing mainly on the case and comparative studies, supported by general considerations concerning justice in the times of transition. To entrench the field as a distinct area of studies, a theory of transitional justice needs to be formulated. The article explores the possibility of making a step towards such a theoretical basis with the use of the tools of analytical philosophy, methodology and legal theory. First, drawing on Leszek Nowak’s procedure of idealisation, three basic models of responses to a painful past are formulated. Then, distinct transitional justice values are attributed to each of the models. Finally, with the use of Jerzy Kmita’s concept of humanistic interpretation, the article seeks to conceptualize the way in which these values – among other factors, such as the need to uphold the rule of law or to preserve the stability of a democratic system – influence the choice of a model of transitional justice response. Thus, the aim of the presented models – which I described in more detail elsewhere (Krotoszyński 2017) – is to provide a sound theoretical basis for some of the fundamental claims formulated in the field of transitional justice.

The main aim of the paper is to analyse the potential transitional justice mechanisms, directed at reintegration of Donbas, a territory temporarily occupied by pro-Russian separatists, being under the combination of a direct and indirect control of Kremlin, with Ukraine. In the aftermath of the Revolution of Dignity and a remove of ex-President Viktor Yanukovych as a consequence of Euromaidan protests held in Kyiv, in the Winter 2013/14, Ukraine became a state involved in the international armed conflict covering its Eastern provinces as a result of an external aggression of the Russian Federation. Furthermore, since early-2014, Moscow is continuously using pro-Russian militants to form and uphold unrecognised, de facto regimes of the so-called ‘Donetsk’ and ‘Luhansk People’s Republic(s)’ affecting the territorial integrity of the Ukrainian state. It is argued that Kyiv shall take into consideration some of the peace and restoration models applied in similar conflict or post-conflict environments, such as the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES) or the experience of numerous disarmament, demobilisation and reintegration (DDR) programs, filled with the transitional justice component. Moreover, by emphasising the context of a military (semifrozen) conflict in Eastern Ukraine, the paper is going to shed more light on the possible application of transitional justice tool-kit in the ongoing conflicts scenarios and its potential contribution to the shift from a conflict to the postwar environment.

Transitional justice is resorted to within the framework of transition from armed conflict to peace and from authoritarian regimes to the democratic ones. To reach the aims of transitional justice and to better integrate the needs and perspectives of the indigenous peoples that very often are victims of serious human rights violations in the transitional context, as well as the colonisation context, indigenous instruments of justice may be utilised. As such they may be treated as complementary to other transitional justice mechanisms. The article aims to find a new perspective on the complementary role of the indigenous justice and the State justice systems within the framework of transitional justice as well as to take into account the indigenous peoples’ needs and customs. The overall aim of the paper is to answer the question whether it is desirable for such indigenous justice instruments to complement the State justice systems through a better integration of the needs and customs of indigenous peoples. In the concluding remarks, a model of complementarity model of transitional justice that includes indigenous instruments will be proposed.

Germany is an example of a country which has been implementing transitional justice for decades and is still active in this field. What is more, contemporary Germans have recently come to terms with their not-so-distant past and their negligence in this area by showing the falsehood, backwardness, and injustice as negative foundations of the young Federal Republic. This article evokes the person of Fritz Bauer, the prosecutor in the state of Hessen. His struggle for human dignity and the memory of his achievements after his death exemplify an accomplished case of transitional justice and the memory of it. During his lifetime he contributed to bringing to trial numerous Nazi criminals, even at the cost of habitual threats and disregard. Forgotten for a few decades, Bauer and his legacy have been recently rediscovered and studied. Eventually, Bauer became a movie character and was finally brought back to the collective memory of Germans. The belated, but a well-deserved wave of popularity of Fritz Bauer in the German culture memory proves that reflections on the transitional justice are still topical and important.

The paper presents findings of the comparative study on relationships between remembrance story-telling and the transitional reconstruction of political identities. It identifies in which areas and fields of impact governments tend to use interpretations of the past to promote new leadership visions of society. Moreover, it verifies theoretical hypotheses related to the politicised remembrance and its role as a political asset during transformations, as well as it considers the theoretical framework of democracy-building (and a common prediction of its universal character). As a result, the study offers a detailed picture of the way remembrance narratives are transformed into explanations, justifications or legitimisation of new, post-authoritarian identities based on qualitative-to-quantitative analysis of the intensity of story-telling and its links with transitional identity politics. In the conclusion, the Authors present their consideration of research findings, and they discuss it with reference to the nature of transitional government’s remembrance policy as a sphere of social influence. 

The article presents the entitled fields in the framework of their mutual influence. The notion of the public sphere is valuable for understanding the role that civil society plays in transitional justice processes. However transitional justice often reduces the idea of civil society to NGOs and ignores the social movements and civic engagement in the public realm that can be perceived as integral to the creation of new cases for understanding justice in transition. This fact results in the lack of perception of the civil society place in transitional justice processes. Thus the presented paper is based on hermeneutics, critical discourse analysis and dialogue between various theoretical approaches.

Burma/Myanmar seems to be a perfect ground for transitional justice with both long-failed transitions to democracy that seemed to succeed in 2015 finally and smouldering civil war taking place there since 1948 (since the 1990s limited to Borderlands). Unfortunately, the political realities in Burma/Myanmar make it unlikely, if not impossible, for transitional justice to be applicable in Burma/Myanmar. The victorious in 2015 elections democratic opposition party, National League for Democracy (NLD) came to power thanks to the political deal with the former military government and is consequently being forced to cohabitate politically with the army that still holds critical political checks over the government. It made NLD’s leader, Aung San Suu Kyi to conduct moderate domestic policy without trying to charge the generals for their former crimes. In this circumstances, transitional justice is unwanted by mainstream political actors (NLD, the army) and seen as threatening to peace by many in the Myanmar society. This approach firmly places Burma/Myanmar on one side of the ‘peace vs justice’ dilemma. It answers the “torturer problem”, one of the central problems of transitional justice – how to deal with members of the previous regime which violated human rights – in ‘old fashion’ way, by granting them full amnesty. As such Burma/Myanmar case also falsifies an optimistic claim that transitional justice is necessary for political reforms.

The aim of this article is to present the dependence path and the number of factors which influenced its shape in the process of achieving transitional justice on the post-Soviet area. In comparative studies carried out in Estonia, Georgia and Poland, it has been demonstrated that there were a number of factors that diversified the process of transformation from the authoritarian to democratic system. The need to settle accounts with the Soviet authoritarian regime was diverse and depended on historical and geopolitical conditions, as well as on the political system which was adopted by individual states after the dissolution of the Soviet Union. It has been observed that in Georgia the process of achieving transitional justice was not initiated but replaced, after consolidating the democratic system, by the process of achieving historical justice; however, in Estonia and in Poland, the problem of settling accounts with the outgoing authoritarian regime constituted one of the key issues of the transformation.

The subject of the article is references to the truth in the constitutions of modern states. The comparative study shows multiplicity of contexts in which the category of truth is mentioned in several dozen fundamental laws. The mention of truth in the constitutions as a component of the axiology of the legal and social order, the basis of transitional justice or the principle of court and administrative proceedings should be assessed positively. However, making the truth a limit of freedom of speech raises serious reservations. Granting constitutional protection only to truthful statements can stifle the public debate on socially prominent issues. The conducted analysis does not confirm the thesis of political liberalism that the truth is irrelevant for law and politics.

In this article, the author argues that the introduction of measures in Poland to remedy violations of the rule of law, particularly regarding the judicial system, does not require so far referring to the principles of transitional justice. The author loosely refers to Ernst Fraenkel’s concept of a dual state which is sometimes used to describe the political reality in contemporary Poland. In a dual state, there are two parallel realities, and apart from politicized organs there may also exist institutions that have not yet been captured by the ruling party, i.e. institutions that do not recognise the current, unconstitutional legal order. Therefore, according to the author, the assessment of the legal legitimacy of certain institutions or persons (including judges), after the restoration of the rule of law in the nearest future, may differ from the classic transition from a completely non-democratic to a democratic regime.