This project studies the functions and limits of criminal law in the processes of replacing pre-democratic political systems and of coming to terms with the wrongdoing of the old system in transitional or transformation societies. In the final analysis, there is no "best way" of employing the criminal law to deal with the past following political system change. Each individual country’s approach to transitional criminal law depends on its own particular policies with regard to dealing with the past and on its unique historical context.

The 20th cen­tury was an epoch of up­heav­al in polit­ic­al sys­tems, of trans­itions and trans­form­a­tions, and of the re­place­ment of pre-demo­crat­ic sys­tems by civil so­ci­et­ies. This de­vel­op­ment is con­tinu­ing in the new mil­len­ni­um. Law and justice in trans­ition­al or trans­form­a­tion­al so­ci­et­ies are con­fron­ted with the task of identi­fy­ing their role in deal­ing with the crimes of the pre­vi­ous re­gime (trans­ition­al justice). One pos­sible re­sponse to the crimes of re­placed or failed re­gimes is to em­ploy the crim­in­al law. Oth­er re­sponses in­clude com­pens­a­tion, re­hab­il­it­a­tion, and the use of truth com­mis­sions. This pro­ject com­pares the vari­ous re­sponses and ad­dresses as well the is­sue of wheth­er there is a re­la­tion­ship between the polit­ic­al trans­itions stud­ied and the chosen re­sponses and, if such re­la­tion­ships ex­ist, what they are. This is an is­sue of glob­al con­cern.

The goal of this pro­ject is to cla­ri­fy the role of crim­in­al law when deal­ing with severe hu­man rights vi­ol­a­tions in the af­ter­math of polit­ic­al sys­tem change. Against this back­drop, the pro­ject stud­ies the func­tion and lim­its of crim­in­al law in the re­place­ment of polit­ic­al sys­tems and in com­ing to terms with sys­tem crime (Trans­itionsstra­frecht), in­clud­ing the paths taken in vari­ous coun­tries.

The re­search meth­od is de­signed to ac­com­mod­ate the trans­ition­al pro­cesses and re­sponses to sys­tem-typ­ic­al crime in the coun­tries stud­ied. This re­quires lon­git­ud­in­al stud­ies based on in­di­vidu­al coun­try re­ports from over 20 coun­tries in di­verse polit­ic­al and geo­graph­ic­al re­gions.

One find­ing of this pro­ject is that the ju­di­cial treat­ment of the past in peri­ods of trans­ition is de­pend­ent in large meas­ure on the “policies of deal­ing with the past” ad­op­ted by the coun­try un­der study. These policies are in­flu­enced by nu­mer­ous goals and factors – polit­ic­al, his­tor­ic­al, per­son­al, eco­nom­ic, etc. – that are unique to each coun­try; however, the spe­cif­ic in­flu­ence ex­er­ted by the polit­ic­al goals and oth­er factors on the pre­cise meth­od of crim­in­al law treat­ment of the past is not al­ways im­me­di­ately re­cog­niz­able. In con­trast, it is very clear that com­ing to terms with the past is not seen first and fore­most as the task of law en­force­ment. At the fore are those polit­ic­al re­sponses that draw les­sons from the past. These in­clude new demo­crat­ic le­gis­la­tion, vic­tim-re­lated re­sponses such as com­pens­a­tion and re­hab­il­it­a­tion, as well as in­sti­tu­tion­al re­ac­tions such as the cre­ation of spe­cif­ic agen­cies re­spons­ible for ad­dress­ing the is­sues that arise dur­ing the trans­ition­al pro­cess.

Most of the the coun­tries stud­ied did not com­pletely forgo pro­sec­u­tion. Pro­sec­u­tion was, however, lim­ited – with great quant­at­ive dif­fer­ences among the coun­tries. On the one hand, from a prac­tic­al per­spect­ive, the lim­it­a­tions were based on the par­ti­cipants, of­fenses, and time frames and, on the oth­er hand, they were the res­ult of con­cer­ted ex­emp­tions from pun­ish­ment, such as am­nesty, par­don, and the ap­plic­a­tion of the rules of stat­utory lim­it­a­tion. In some coun­tries, use of these kinds of meas­ures of ex­emp­tion led to com­pre­hens­ive im­munity.

Against this back­drop, no "best way" of deal­ing with the past fol­low­ing a polit­ic­al sys­tem change can be iden­ti­fied. Each in­di­vidu­al coun­try’s ap­proach to trans­ition­al crim­in­al law de­pends on its own par­tic­u­lar policies with re­gard to deal­ing with the past and on its unique his­tor­ic­al con­text dur­ing the trans­ition.