10.6092/issn.2531-6133/13622
Transitional Justice [hereinafter T.J.] in the post-revolution phase refers to the policies that aim to deal with the autocratic past-regime violations against its people to achieve accountability and democracy and promote human rights and the rule of law. To achieve these goals, the United Nations, within its Rule of Law Initiative, issued in 2010, a set of five mechanisms that work as guidelines for nations recovering from conflicts. I argue that whatever the mechanism or combination selected by a society transforming from an autocracy into democracy is, the nature of these mechanisms requires a trade-off between multiple considerations. To explain this inevitable trade-off, I go through each mechanism in detail, analyze it from both legal and economic perspectives, and then provide a basic cost-benefit analysis. I suggest that transitional justice as a constitutional arrangement requires a holistic approach in its adoption and application because this initial cost-benefit analysis cannot be standardized for all cases. I also suggest that transitional justice policies that take into account proportionality, a combination of different mechanisms, customization of the mechanisms upon the relevant case, and adopting these policies in the formality of basic or organic laws may be expected to have the most effective outcomes achieving the goals of T.J. with the least legal complications.
application/pdf
2531-6133
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Eman M.  Rashwan
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Transitional Justice
The Price of Transitional Justice: A Cost‐Benefit Analysis of its Mechanisms in Post‐Revolution Phase
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2021-10-06
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UBLR
Eman M.  Rashwan
2021/10/06
10.6092/issn.2531-6133/13622
95
Cairo University ; Hamburg University 
2531-6133
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Transitional Justice
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The Price of Transitional Justice: A Cost‐Benefit Analysis of its Mechanisms in Post‐Revolution Phase
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llVOLUME 6                                      llISSUE 1                          ARTICLES & ESSAYS



                            UNIVERSITY OF BOLOGNA LAW REVIEW
                            https://doi.org/10.6092/issn.2531‐6133/13622

              Received: 8 Sept. 2020 | Accepted: 13 May 2021 | Published: 6 Oct. 2021

                                                     A

The Price of Transitional Justice: A Cost‐Benefit Analysis of its
            Mechanisms in Post‐Revolution Phase

                                          EMAN M. RASHWAN
Eman M. Rashwan (LL.B., LL.M., LL.M.) is Lecturer of Public Law at Cairo University (Egypt), and
currently is a Visiting Lecturer at the Hamburg University (Germany) where she’s pursuing her
Ph.D. in Constitutional Law and Economics. She has worked as an international consultant for
leading international organizations, think tanks, and governmental sectors. This research was
completed with a generous fund by the German Academic Exchange Service (DAAD). I would like
to thank Michael Faure, Stefan Voigt, Edoardo Martino, Nada Maamoun, and the participants of the
EDLE seminar at Bologna University, and of the 14th Annual Conference of the Italian Association
of Law and Economics, for their valuable comments. All possible mistakes are however my own.”

 @ eman-rashwan@cu.edu.eg
  ID
       0000-0002-8830-4169

                                                ABSTRACT
Transitional Justice [hereinafter T.J.] in the post-revolution phase refers to the policies that aim
to deal with the autocratic past-regime violations against its people to achieve accountability and
democracy and promote human rights and the rule of law. To achieve these goals, the United
Nations, within its Rule of Law Initiative, issued in 2010, a set of five mechanisms that work as
guidelines for nations recovering from conflicts. I argue that whatever the mechanism or
combination selected by a society transforming from an autocracy into democracy is, the nature
of these mechanisms requires a trade-off between multiple considerations. To explain this
inevitable trade-off, I go through each mechanism in detail, analyze it from both legal and
economic perspectives, and then provide a basic cost-benefit analysis. I suggest that transitional
justice as a constitutional arrangement requires a holistic approach in its adoption and
application because this initial cost-benefit analysis cannot be standardized for all cases. I also
suggest that transitional justice policies that take into account proportionality, a combination of
different mechanisms, customization of the mechanisms upon the relevant case, and adopting
these policies in the formality of basic or organic laws may be expected to have the most effective
outcomes achieving the goals of T.J. with the least legal complications.
                                                KEYWORDS
           Transitional Justice; Revolutions; Constitutional Law; Economics; Cost-Benefit Analysis
                                                JEL CODES
                                                  K40, K41




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                                  THE PRICE OF TRANSITIONAL JUSTICE


                                             TABLE OF CONTENTS



Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          .   .   .   .   .   .   .   .   .   .   .   .   .   .    96
1. The Mechanisms of Transitional Justice . . . . . . . . . . . . . .             .   .   .   .   .   .   .   .   .   .   .   .   .   .   101
        1.1. Prosecution Initiatives . . . . . . . . . . . . . . . . . .          .   .   .   .   .   .   .   .   .   .   .   .   .   .   101
        1.2. Facilitating Initiatives in Respect of the Right to Truth            .   .   .   .   .   .   .   .   .   .   .   .   .   .   113
        1.3. Delivering Reparations . . . . . . . . . . . . . . . . . .           .   .   .   .   .   .   .   .   .   .   .   .   .   .   119
        1.4. Institutional Reform . . . . . . . . . . . . . . . . . . .           .   .   .   .   .   .   .   .   .   .   .   .   .   .   123
        1.5. National Consultations . . . . . . . . . . . . . . . . . .           .   .   .   .   .   .   .   .   .   .   .   .   .   .   131
2. General Remarks and Policy Implications . . . . . . . . . . . . .              .   .   .   .   .   .   .   .   .   .   .   .   .   .   134
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          .   .   .   .   .   .   .   .   .   .   .   .   .   .   142




      INTRODUCTION

Transitioning from autocratic to democratic regimes through revolutions1 is a path full
of hard choices.           One of the most challenging choices that the parties to the
post-revolution phase have to make is how they deal with the concept of transitional
justice [hereinafter T.J.]. The United Nations [hereinafter U.N.] guidelines on T.J., which
are part of its Rule of Law Initiative, define T.J. as “the full range of processes and
mechanisms associated with a society’s attempt to come to terms with a legacy of
large-scale past abuses, in order to ensure accountability, serve justice and achieve
reconciliation.”2 This article focuses on violations committed by autocratic regimes
against their people.           Consequently, other violations that could be subject to T.J.,
including those in the context of national and international conflicts, colonization, or
any other form of regime transformation that does not include a revolution against an
autocratic regime, are beyond the limits of this article.

1
  This article defines revolution as a movement by the people that led to a regime change through abolishing
  the throwing the existing government. This definition is similar to the one used by many prominent scholars
  including Huntington, Walt, and Colgan: see Jeff Colgan, Measuring Revolution, 29 CONFLICT MGMT. PEACE
  SCI.444, 446 (2012).Consequently, all other forms of internal or external disrupts that do not 1) have a group
  of the state citizens as their primary component, 2) rise against an autocratic national regime, and 3) manage
  to change the governing regime even if temporarily, are beyond the setup of this analysis. These other
  forms could include rebellions that did not succeed in throwing the government, secession from the state to
  form a new one, civil war between different national groups, aimless popular implosion, resistance against
  a foreign colonizing power, or a coup d’etat by the military. The limits of this article is the analysis of
  the post-revolution phase in cases of revolutions against autocratic regimes that aim to democratization.
  There could be two scenarios of the regime change in this case: Regime collapse or rupture, and negotiated
  transition. However, the differentiation between these two scenarios is beyond this article’s analysis. For
  more on the regime ending types, see TRICIA D. OLSEN ET AL., TRANSITIONAL JUSTICE IN BALANCE: COMPARING
  PROCESSES, WEIGHING EFFICACY 155–59 (2010).
2
  United Nations, Guidance Note of the Secretary-General: United Nations Approaches to Transitional Justice 2 (2010),
  https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf.


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Let us assume that a revolution succeeded against an autocratic regime that had
committed human rights violations against its people - and probably against the
revolutionaries themselves. Moreover, the revolutionaries, the new-rulers (whomever
they are), and the victims (who are every citizen who was directly or indirectly suffering
disutility by the corrupted policies of the past-autocratic regime) share the same
preferences. These preferences are achieving T.J.’s goals, i.e., accountability, justice,
conciliation, and of course, the transformation into a democracy. Obviously, this is the
most optimistic scenario of a post-revolution set-up that rarely applies in reality. First,
both history and rational choice theory tell us that the policy-makers and the victims
would have divergent preferences in most cases. Even if the policy-makers are not part
of the past regime and wish to achieve a radical break with it, this does not mean they
would necessarily aspire to achieve the revolution goals. The new rulers’ ultimate
interest would probably be to care for their self-interest rather than the social welfare
and consequently try to maximize their powers and profits. Second, even when the new
policy-makers have the same preferences as the victims and aspire for social
welfare-enhancing policies, there would still be behavioral biases to expect from both
parties emerging from the asymmetric information between them; The policy-makers
are expected to possess better information about the applied laws, involved parties, and
technical details than the victims (the public).
        These concerns and primary dilemmas of T.J. are, however, not the topic of this
research; they constitute the first-degree T.J. dilemmas. This article deals with the
second-degree dilemmas, i.e., the selection among the offered T.J. mechanisms and not
resorting to T.J. in the first place as a notion. It is logical to think that these first-degree
dilemmas would spill over the second-degree mechanisms’ selection process.                 This
spillover can be traced in part through the analysis given to each mechanism. However,
as long as these second-degree dilemmas are the core focus of this research, the author
performs the following analysis under the previously mentioned assumptions to discuss
the mechanisms in a specific manner away from the primary concerns referred to
earlier. The argument is that even under these assumptions used to simplify the analysis
setup, the tough questions hold; Which mechanisms of T.J. to adopt? Amnesties or
prosecutions?      Lustration or integration?          Financial reparations or symbolic
compensation through finding the truth?




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                                  THE PRICE OF TRANSITIONAL JUSTICE


The Guidance Note of the Secretary-General on the United Nations Approach to
Transitional Justice (2010) sets five T.J. mechanisms.3 These mechanisms are:
prosecution initiatives, facilitating initiatives in respect of the right to truth, delivering
reparations, institutional reform, and national consultations.4
          This article presents a cost-benefit analysis [hereinafter C.B.A.] of each mechanism
to explain the trade-off that the policy-makers need to do in the post-revolution phase.
The objective of this C.B.A. is to present comprehensive guidance to the expected trade-off
between social costs and benefits that each mechanism involves derived from a law and
economics analysis and actual examples. Using this basic C.B.A. would then help future
informed decisions by policy-makers dealing with T.J. mechanisms’ selection processes by
identifying the calculations’ inputs, but not their outcome that depends on the case.
          The main parties to the tackled post-revolution phase are: first, the past-regime
members, including the high-ranked members like the president or the chief of the
governing political party, and the less-ranked members like governorates or members of
that party. This group’s primary concern is how to keep influence on the new regime
and avoid any punishing mechanisms.                     Their impact on the policy-making in the
transitional phase differs upon the type of transformation and the second group’s
preferences, i.e., transitional rulers. Second, transitional rulers are the group governing
the post-revolution phase. This group does not necessarily have to be the same group
that started the revolution, but it is the group that has sufficient power to control the
state after removing the last government. How this group weighs the costs and benefits
of any T.J. mechanism depends in the first place on how far their preferences are aligned
with the first or the third group. Third, the victims, who are the citizens directly or
indirectly negatively impacted by the past-regime policies and violations. Among these
victims, there are those supporting the revolution and those favouring the past regime.

3
  The guidelines use the terms “components” and “elements” to refer to the mechanisms of T.J. For the sake
  of consistency and clarity through this article, I only use one term “mechanisms” to refer to them, to not
  confuse the reader. The literature uses “mechanisms”, “components”, “elements”, “policies”, “tools”, and
  “measures” alternatively. However, they are all referring to the same issue, being the processes through
  which T.J. is applied.
4
  Consequently, the guidelines do not include amnesties as one of the T.J. mechanisms, although both
  literature and practice do, see e.g., Carlos H Acuña & Catalina Smulovitz, Guarding the Guardians in Argentina:
  Some Lessons about the Risks and Benefits of Empowering the Courts, in TRANSITIONAL JUSTICE AND THE RULE OF LAW IN
  NEW DEMOCRACIES 93 (A. James McAdams ed., 1997); Jack Goldsmith & Stephen D. Krasner, The limits of idealism,
  132 DAEDALUS, no. 1, 2003, at 47; Tom Hadden, Punishment, Amnesty and Truth: Legal and Political Approaches, in
  DEMOCRACY AND ETHNIC CONFLICT: ADVANCING PEACE IN DEEPLY DIVIDED SOCIETIES 196 (Adrian Guelke ed., 2004);
  Mark J. Osiel, Why prosecute? Critics of punishment for mass atrocity, 22 Hum. Rts. Q. 118 (2000). ; Stephen John
  Stedman, Spoiler Problems in Peace Processes, 22 INT’L SEC., no. 2, 1997, at 5. ; Leslie Vinjamuri & Jack Snyder,
  Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice, 7 ANN. REV.
  POL. SCI. 345 (2004); Paul W. Zagorski, Civil-Military Relations and Argentine Democracy: The Armed Forces under
  the Menem Government, 20 ARMED FORCES SOC. 423 (1994). As this research depends on the U.N. guidelines as
  its reference point, it will be restricted to the five mechanisms they uphold.


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However, as long as the popular revolution succeeded in throwing out thE past regime,
one can presume that the preferences of most of this group are affiliated with the T.J.
purposes, including achieving democracy, accountability, and reconciliation, at least in
the early stages of the transitional phase when the T.J. policies are still under design. As
referred to earlier, this C.B.A. performs under the assumption that both the second and
third groups share the same preferences of achieving T.J. goals. At first thought, at least
in theory, this should ease the T.J. policy design process and minimize any
principal-agent problems to a great extent.                        However, even under these optimal
assumptions, the calculations of the selected policies/mechanisms are complicated.
          My argument is that no matter what the adopted mechanism is, there will
always be costs for this adoption, including the opportunity cost of adopting a different
mechanism, especially since they do not adhere to the same philosophy (approach) in
dealing with past crimes or future arrangements. The different entries quantification,
multiplied by their probability, in each mechanism C.B.A. depends on the context these
mechanisms are applied within. As a result, this quantification cannot be standardized.
Consequently, although the compared costs and benefits may be constant, their
weighing and the maximization of their outcome is not. This also suggests that not only
holistic approaches are expected to be the most efficient in achieving T.J. goals, but in
specific, the balanced approaches that combine different mechanisms are expected to
promote this efficiency. By efficiency, we refer to Kaldor-hicks efficiency, which C.B.A. is
based upon.5
          Although T.J. deals with past violations, it is an ex-ante constitutional
arrangement. First, it is a legal arrangement with a constitutional nature because it
regulates the state authorities, human rights of the citizens, and institutional reforms. In
some cases, this nature meets formality when T.J. laws are generated in the
constitutional text or organic laws. Second, it is an ex-ante arrangement because it also
sets rules for future institutions besides dealing with past human rights violations. This
is normal in a legal arrangement in transitional times, also as Teitel puts it: “Law in
transitional periods is both backward-looking and forward-looking, retrospective and
prospective, continuous and discontinuous.”6 In the T.J. context, political actors are
deciding under uncertainty and imperfect information on a future trade-off between the
expected utility and the expected cost, in the shadow of a risk margin.

5
  A situation is considered Kaldor-hicks efficient when the economic gains of that situation exceed the
  economic losses to whomever they occur, see CENTO G. VELIANOVSKI, ECONOMIC PRINCIPLES OF LAW 33 (2007).
  This is the same rationale used to run the C.B.A.. Accordingly, in our context, a mechanism is considered
  efficient if the benefits out of its adoption exceed the costs of its application, even if, for instance, the benefits
  are all accumulated by the victims while the past-regime members incur all the costs.
6
  RUTI G. TEITEL, TRANSITIONAL JUSTICE 215 (2000).


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                                  THE PRICE OF TRANSITIONAL JUSTICE


Their decisions will influence their positions in the new political order. Consequently, the
options in the C.B.A. should be evaluated based on ex-ante efficiency.
          This quantification is expected to be made using an inspired utility equation of
the Becker model,7 according to which. As a constitutional arrangement, T.J. is not a
contract, and it does not have a third-party enforcer who would guarantee its
application. The judiciary that enforces the constitution and other laws in the typical
situations when the government abstains or precludes their application is themselves a
party to the conflict. The courts of an authoritarian regime would most probably need
institutional reform. Moreover, some judiciary members might benefit from a form of
reparation and might serve as witnesses in the truth commissions. In other words, the
typical enforcer of the law is here a party, either as a victim, perpetrator, or a
policymaker, who has their own costs and benefits of any relevant mechanism.
Consequently, T.J. policies, like other constitutional arrangements, need to be
self-enforcing. A self-enforcing T.J. policy would be the one in which its benefits (b)
exceed its costs (c) for the different parties, or that the costs of its absence are so high,
which gives them the incentives to apply it. The rest of this article tries to present this
equation’s potential entries within each of the T.J. mechanisms.
          The C.B.A. is a methodology that is used differently in each field. In the sphere of
public policy making, there are many debates over how far we should rely on C.B.A. results
and concerning their limits. This may especially be an issue when C.B.A. is applied to topics
that involve considerations that are difficult – or even impossible – to be monetized.8 This
debate, however, is not the subject of this research. However, it is necessary to mention
that quantifying the relevant entries in the C.B.A. presented here, and even adding to or
deleting from them, is both flexible and inevitable. The given value to each entry, the kind
of costs and benefits of each mechanism, and the priority of goals over other goals vary
from case to case. The following provides a basic analysis that is meant to be customized
through the relevant policy-makers who wish to take it as guidance.
          The central research questions this article answers are: What is the economic
rationale behind T.J. mechanisms? By “economic,” I do not mean only the financial
7
  Becker model for criminal deterrence is a mathematical model presented by Gary Becker (1968) that treats
  criminals as rational actors who desire to maximize their wellbeing but through illegal means rather the
  legal ones. Accordingly, Becker suggests that for a criminal sanction to achieve deterrence there should be
  an equation that takes in account the expected gain of the crime to the perpetrator and the cost resulting of
  the severity and probability of punishment. For more on Becker’s seminal work on crime and dealing with
  it as a economic concept, see VELIANOVSKI, supra note 5; Christine Jolls et al., A Behavioral Approach to Law and
  Economics, in BEHAVIORAL LAW & ECONOMICS 1471 (Cass R. Sunstein ed., 2000); Elena Kantorowicz-Reznichenko,
  Any-Where-Any-Time: Ambiguity and the Perceived Probability of Apprehension, 84 UMKC L. REV. 27 (2015) ; Gary
  S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
8
  For more on the discussion over and strategies of cost-benefit analysis in the sphere of public policy, see CASS
  R. SUNSTEIN, THE COST-BENEFIT REVOLUTION (2018).


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aspects, but rather the economic theory that explains the logic of these mechanisms and
their necessity, including both financial and non-financial components. Moreover, what
are the expected costs & benefits of each of these mechanisms, including their
constitutional complexities? In doing so, the U.N. Guidelines on T.J. will be used as the
model of T.J. mechanisms for their international impact and given legal value as a rule
book for nations transitioning from autocracy to democracy.
            The article proceeds as follows: section one presents five sub-sections, each
containing the C.B.A. of the five studied mechanisms. Section two gives general notes
and policy implications. The last section is the conclusion.




        1. THE MECHANISMS OF TRANSITIONAL JUSTICE

The T.J. mechanisms are channels set to achieve their goals. In this section, I explain
them from a legal perspective, provide for the economic intuitions behind them, as well
as the challenges faced.              Afterward, I give a C.B.A. for each of these mechanisms.
Although this C.B.A. is inspired by both theory and case studies available on the subject,
it is still a positive theoretical analysis of these mechanisms. It aims at predicting the
possible costs and benefits of each mechanism, but only the empirical analysis informs
us about the prevailing approaches. However, because of T.J.’s contextual nature that I
have referred to earlier, the reader will notice that some arguments could work as costs
and/or benefits at the same time. Moreover, some mechanisms may work negatively and
positively in different cases, which was also proven by the empirical studies available so
far.9



      1.1. PROSECUTION INITIATIVES

This mechanism entails that those involved in committing the addressed crimes are to be
trialed and, where appropriate, punished. The measures of these trials, according to the
guidelines, are the following:




9
    See e.g.,Oskar N.T. Thoms, James Ron & Roland Pariss, State-Level Effects of Transitional Justice: What Do We
    Know?, 4 INT’L J. TRANSIT. JUST. 329 (2010); Roman David, What We Know About Transitional Justice: Survey and
    Experimental Evidence, 38 POL. PSYCH. 151 (2017) ; OLSEN ET AL., supra note 1; Geoff Dancy et al., Behind Bars and
    Bargains: New Findings on Transitional Justice in Emerging Democracies, 63 INT’L STUD. Q. 99 (2019).


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                                  THE PRICE OF TRANSITIONAL JUSTICE


      • The trialed crimes include “the serious violations of international humanitarian law and
        gross violations of international human rights law.”10 The word “include” infers the
        meaning that these crimes can also include other crimes under national laws.

      • These trials have to be undertaken according to the international standards of fair
        trials.11 There is no single comprehensive source of international law that defines
        what a fair trial entails.          Instead, there are different measures mentioned in
        regional and international instruments, such as the Universal Declaration of
        Human Rights, the International Covenant on Civil and Political Rights [I.C.C.P.R],
        the Geneva Conventions, the African Charter on Human and Peoples Rights
        [A.C.H.P.R], the European Convention on Human Rights, and the American
        Convention on Human Rights. Amnesty International provides a practical manual
        on free trials provisions that have been approved either as treaty obligations
        binding on their parties or as part of the customary international law that reflects
        the international community’s collective will and then binding over all its
        members.12 The fair trial standards include a wide range of rights that have to be
        observed pre and during trials.13 However, the rules governing these standards
        also acknowledge the exceptional nature of emergency cases. The first condition is
        that the state of emergency already and lawfully exists. “Under international human
        rights treaties, a state of emergency can be declared only if there is an exceptional and grave
        threat to the nation, such as the use or threat of force from within or externally that
        threatens a state’s existence or territorial integrity.”14 Although they may vary in
        extent, revolutions and transitional phases are usually an emergency state by
        nature and law. Some treaties gave the states the right to derogate from some of
        these fair trial guarantees under the conditions of being temporary, necessary, and
        proportional. However, some of them are absolute and cannot be derogated from
        under any condition. These absolute rights include:15

            – The prohibition against torture or other cruel, inhuman, or degrading
               treatment or punishment;
10
   International Human Rights Law [hereinafter I.H.R.L.] and International Humanitarian Law [hereinafter
   I.H.L] are two different complementary branches of Public International Law. Although they have the same
   aim of protecting the lives and rights of humans, they differ in their origins, and scopes of application. Most
   significantly, while I.H.L. applies only on the armed conflicts, I.H.R.L applies at all times. See INTERNATIONAL
   COMMITTEE OF THE RED CROSS, What is the difference between IHL and human rights law?, in INTERNATIONAL
   HUMANITARIAN LAW: ANSWERS TO YOUR QUESTIONS (2014). See United Nations, supra note 2, at 7.
11
   Id.
12
   Amnesty International, Fair Trial Manual 1 (2 ed. 2014), https://www.amnesty.org/en/documents/POL30/002
   /2014/en/.
13
   For a full review of these rights, see id.
14
   Id. at 232.
15
   Id. at 229–338.


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            – The right of people deprived of their liberty to humane treatment;

            – The prohibition of enforced disappearance;

            – The prohibition of arbitrary arrest or detention, including unacknowledged
              detention;

            – The right to be recognized as a person before the law;

            – The right to petition a court challenging the legality of detention;

            – The right to proceedings before an independent, impartial and competent
              court;

            – The right to a public trial, in all but exceptional cases which are warranted
              in the interests of justice, the requirement of clear and precise definitions of
              offenses and punishments;

            – The prohibition of retroactive application of criminal laws (including the
              imposition of a heavier penalty than was applicable at the time of the crime),
              and the right to benefit from a lighter penalty;

            – The obligation to separate people held in pre-trial detention from those who
              have been convicted and to treat them in line with their status as unconvicted;

            – The presumption of innocence;

            – The right to legal aid for those without adequate financial resources;

            – The prohibition of collective punishment;

            – The principle that the essential aim of punishment involving deprivation of
              liberty is reform and rehabilitation;

            – The prohibition against double jeopardy, judicial guarantees, such as habeas
              corpus16 and Amparo17 , to protect non-derogable rights;

            – The right to effective judicial remedies for violations of other human rights;

            – The right to compensation for individuals whose innocence is established by
              a final judgment, in addition to the non-derogable rights guaranteed in death
              penalty cases.
16
   “Habeas Corpus” is a Latin expression that translates into “You have the body”. Legally it refers to “A writ
   (court order) that commands an individual or a government official who has restrained another to produce
   the prisoner at a designated time and place so that the court can determine the legality of custody and
   decide whether to order the prisoner’s release” habeas corpus, West’s Encyclopedia of American Law (2 ed.
   2008), https://legal-dictionary.thefreedictionary.com/habeas+corpus (last visited Oct 12, 2018).
17
   “The writ of Amparo is a remedy for the protection of individual or constitutional rights, found in certain
   jurisdictions including Mexico, Spain, the Philippines and parts of Latin America” amparo, The World Law
   Dictionary Project (2017), https://www.translegal.com/legal-english-dictionary/amparo (last visited Oct
   12, 2018).


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                                   THE PRICE OF TRANSITIONAL JUSTICE


      • The trials should be held in a non-discriminatory and in an objective and a timely
        manner.18

      • The jurisdiction over these crimes is primarily the state’s responsibility, so they will
        need to develop the necessary capacity to perform the prosecutions according to
        the previous standards. However, the international community can also provide
        help in conducting such processes. This point entails the need for national laws that
        conform to International Human Rights Law [hereinafter I.H.R.L.] and International
        Humanitarian Law [hereinafter I.H.L.]19

      • In the same context as the previous point, the guidelines also suggest, first, that
        systematic monitoring over the judicial performance within these trials can
        guarantee their effectiveness and fairness. Second, that in cases where the states
        are unable or unwilling to undertake effective investigations and prosecutions,
        international hybrid criminal tribunals20 can perform a concurrent jurisdiction.21
        The guidelines assure that in such cases, such tribunals have to give priority
        consideration to their legacy in the country and their exit strategy; how will their
        performance influence the treated country by the completion of the prosecution?
        Moreover, how can one help the national authorities to improve their capacities to
        contribute to bringing the alleged perpetrators to justice?22                            However, this
        conception of international prosecutions seems problematic in many cases. On the
        one hand, the crimes that the past-autocratic regime members are supposed to be
        prosecuted for are not always under the crimes subject to the international courts‘
        jurisdiction according to public international law.                         For example, financial
        corruption crimes, or elections manipulation, are not considered war crimes or
        crimes against humanity. On the other hand, even if this point was – supposedly -
        solved by creating a special international court – which has no precedent for
        similar crimes - the main obstacle lies in considerations of the principle of national
18
   United Nations, supra note 2, at 7.
19
   Id.
20
   Hybrid international criminal tribunals are tribunals that consist of both national and international
   elements on both the level of subjective (applying mixed laws) and procedural (having both national and
   international judges) levels, see SARAH WILLIAMS, HYBRID AND INTERNATIONALISED CRIMINAL TRIBUNALS : SELECTED
   JURISDICTIONAL ISSUES (2012).
21
   International courts in this case work as a subsidiary jurisdiction when the national courts fail to perform
   their jurisdiction under the principle of universal jurisdiction, like the case for International Criminal Court
   for example. For more on the principle of complementarity in international law, see Xavier Philippe, The
   principles of universal jurisdiction and complementarity: How do the two principles intermesh?, 88 INT’L REV. RED
   CROSS 375 (2006). I think, however, that in case of T.J. international hybrid criminal tribunals can be less
   problematic than purely international courts for the reasons explained in the main texts, generally related
   to the past-revolution circumstances and concerns.
22
   United Nations, supra note 2, at 7–8.


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          sovereignty. Efforts by international tribunals to settle national disputes, and
          policies on international monitoring over the national judiciary, can be rejected
          based on breaching the state’s national sovereignty and independence.23
          Especially since any revolution, at least in the beginning, faces accusations of
          conspiracy and foreign interference.


Initially, the trials and prosecutions of the past-regime members who committed
violations of I.H.R.L. and/or I.H.L. may aim to correct the negative externalities caused
by their crimes.24 However, in this context, the following is noted.


       • The crimes of murder, mass killing, torture, and other violence crimes, were either
          committed during the rule of that regime or the revolutions’ incidents. The other
          crimes, which include political or economic corruption, were committed during
          the past regime rule.                    Consequently, the probability of collecting the legally
          sufficient evidence, according to the international standards of criminal
          procedures laws, against the direct committers or against the regime’s chief
          leaders who gave the orders is significantly low. Either because the criminals had
          ample time and necessary authority to destroy the evidence, which happened, for
          example, in Japan after World War II,25 and in Egypt after the 2011 revolution,26 or
23
   See, e.g.,Chandra Lekha Sriram, Revolutions in Accountability: New Approaches to Past Abuses, 19 AM. UNIV. INT’L
   L. REV. 301 (2003);Robert Cryer, International Criminal Law vs State Sovereignty: Another Round?, 16 EUR. J.
   INT’L L. 979 (2005).;Atul Bharadwaj, International criminal court and the question of Sovereignty, 27 STRATEGIC
   ANALYSIS 5 (2003) ; Daniel Partan & Predrag Rogic, Sovereignty and International Criminal Justice, 1 Int’l L: Revista
   Colombiana Derecho Internacional, num. 1, at 53 (2003).
24
   Externalities in microeconomics are a form of market failure that happens when a third party to a voluntary
   action incur either a cost (negative externalities) or a benefit (positive externalities), which creates a
   divergence between the privately and socially optimal equilibria. The value of the uncompensated external
   effects to that third party is called externalities. Internalization of externalities refers to the instruments
   created to induce people to take account of their actions’ external effects. See FRANCESCO PARISI, THE LANGUAGE
   OF LAW AND ECONOMICS: A DICTIONARY 114-6 (2013). Negative externalities of crimes refer to the cost that other
   individuals and society as a whole suffered because of these crimes. For example, the negative externalities
   of torture include first, the physical, psychological, and monetary losses to the tortured person and also his
   family; second, the costs born by the society as a result of losing the output of a citizen and the potential
   benefit of other citizens who would contribute more actively to the society if it was not for fear of being
   tortured as well; and finally, the damage incurred by the society due to lack of the rule of law, human rights,
   and democracy which can be cultural, political, and also economical. In this example, and most of the other
   examples in the sphere of transitional justice context, these negative externalities can reach infinity if we
   quantify them because of the complexity of included calculations as explained in the example. For more
   on the negative externalities of the crime, see also Graham Farrell & John Roman, Crime as pollution: proposal
   for market-based incentives to reduce crime externalities, in CRIME REDUCTION AND THE LAW 135 (Stephens & Moss
   eds., 2006); John Roman & Graham Farrell, Cost-Benefit Analysis for Crime Prevention: Opportunity Costs, Routine
   Savings and Crime Externalities, 14 CRIME PREVENTION STUDIES, no.1, 2002, at 53.
25
   ZACHARY D. KAUFMAN, UNITED STATES LAW & POLICY ON TRANSITIONAL JUSTICE: PRINCIPLES, POLITICS, AND
   PRAGMATICS (2017).
26
   See Watan, ��� ����� ������� ������� ���� ����� ���� ����� ��� ������� ���� ����������� [The Egyptian Intelligence Document Reveals Destroying
   “Mubarak” and the Interior Ministry Condemnation Evidence of the Protestors Mass Killing], “Watan” ,���
   (2014) https://www.watanserb.com/2014/12/04/����� ��������� ������� ���� ����� /�� (last visited June 29, 2020).


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                                    THE PRICE OF TRANSITIONAL JUSTICE


         because of the chaotic nature of the revolution’s incidents. This concern entails a
         high rate of error, i.e., criminals not to be punished while non-criminals may be
         punished. An example of the first case is a top official who misused the public
         resources for his private interests (rent-seeking) but could destroy all the
         documents that could prove so.                   An example of the second case could be a
         policeman defending his police station against violent attacks during the protests,
         it could be that he would never kill an innocent citizen in the usual conditions, but
         in the current case, he should be in a legitimate defense situation.27 However, the
         probability of proving so in the middle of a chaotic, politically tensioned, and
         unstable security situation like a revolution,28 could be very low. In case these
         difficulties led to adopting pre-decided punishment based on presumed
         responsibilities of the position the accused occupied without counting on the usual
         legal standards, this may as well result in over-deterrence for public posts
         holders.29 Officials could stop doing their job duties because they are afraid of
         being subject to legal accountability in the heat of the moment of the aftermath of
         revolution and the “war” on corruption, past-regime, police violations, or
         whatever is targeted. This reaction can reduce the public officer’s level of activity
         below the optimal level to social welfare while exceeding the level of care to
         socially disturbing levels. Such a behavior has been witnessed already in some
         cases and will be referred to in more detail later. In other cases, these difficulties
         resulted in clearing all the sentences because the authorities were unable to collect
         the necessary evidence, which may result in under-deterrence. The rulers of the
         transitional phase, the rulers of the new regime, and the public officers of these
         two regimes would realize that they can get away with abuses against the citizens
         because the probability of sanctioning them is too low due to evidence difficulties.
         While performing public duties, the level of care would then go lower than the
         optimal level for social welfare.30 The Egyptian case, for example, witnessed the

27
   For more about the doctrine of legitimate self-defense in criminal law, see Boaz Sangero BOAZ SANGERO, SELF-
   DEFENCE IN CRIMINAL LAW (2006).
28
   See Luc Huyse, Justice After Transition: On The Choices Successor Elites Make In Dealing With The Past, 1 TRANSITIONAL
   JUSTICE 337, 345 (1995).
29
   See Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1221 (1985). For more
   on the debate about over-deterrence, see also Keith N. Hylton, Economics of Criminal Procedure, in OXFORD
   HANDBOOK OF LAW AND ECONOMICS: PUBLIC LAW AND LEGAL INSTITUTIONS 325 (Francesco Parisi ed., 2017). ; Jolls
   et al., supra note 7; Richard Craswell, Deterrence and Damages: The Multiplier Principle and Its Alternatives, 97
   MICH. L. REV. 2185 (1999).
30
   Concepts of “optimal level of care vs. optimal level of activity” and “overdeterrence vs. underdeterrence”
   are borrowed from the tort law and economics literature that witnessed lengthy discussions to reach the
   most efficient liability rule for the social welfare. For more on these discussions, see STEVEN SHAVELL,
   FOUNDATIONS OF ECONOMIC ANALYSIS OF LAW (2004); MICHAEL FAURE ET AL., TORT LAW AND ECONOMICS (2009).;
   VELIANOVSKI , supra note 5; Jolls et al., supra note 7; Craswell, supra note 29.


                                                          106
2021]                                UNIVERSITY OF BOLOGNA LAW REVIEW                                             [Vol. 6:1


         failure of many of the prosecution initiatives because of the adoption of the
         traditional evidence collecting methods that are not effective in the case of the T.J.
         process, which led to the insufficiency of the collected evidence.31

         The difficulties of collecting the necessary evidence are maximized when we take
         into consideration that even in case this task is allocated to international authorities
         to avoid any conflict of interests, the national authorities are still involved in the
         process and are the primary parties who provide this evidence, because of logistic
         reasons.


      • The difficulties in collecting evidence are not the only hardship that prosecution
         initiatives may face, although the T.J. literature usually overlooks it. Other legal and
         political obstacles include other concerns that may be present when judging the
         past regime because of the dispute’s political nature. These concerns could include:
         Politicized courts,32 the partiality of the judges,33 the pressure of the public opinion
         on the judiciary,34 sanctioning the adoption of specific political opinion, or adhering
         to a political party that infringes the constitutional right of freedom of opinion,
         speech, or association, and most importantly retroactive justice.35

         If the courts follow the past-regime substantial criminal laws, there is a chance that a
         number of the perpetrators may escape punishment because the laws were tailored
         to serve the goals of that regime. An example of this is the acts of the Nazis, which
         were lawful under the Nazi laws, or at least adopted by the then applicable legal
         techniques.36 There are two broad strategies to avoid this:


             – The first and typical way includes the classic techniques adopted by the
                 transitioning systems to finesse the long debate between the moral

31
   See Abdullah Khalil, ����� ������� ���������� �� ��� ��� ���� 25 ����� 2011 ������) �������� (�������� [The Map of Transitional
   Justice in Egypt Since 25 January Revolution (The Track - The Challenges - The Policies)] 440 (2017),
   https://books.google.de/books?id=tkihDgAAQBAJ&pg=PA1&lpg=PA1&dq=����� ������� ���������� �� ��� ������ 25 �����
   source=bl&ots=l7kOfE90uE&sig=ACfU3U3B5q3acNAwOHVKi-UjPZJqRNhGXA&hl=en&sa=X&ved=2ahUKEwjjyb
   -u4dHqAhXR_KQKHSBjAR8Q6AEwD3oECAoQAQ#v=onepage&q= (last visited Jun 27, 2021).
32
   See Ellen Emilie Stensrud, New Dilemmas in Transitional Justice: Lessons from the Mixed Courts in Sierra Leone and
   Cambodia, 46 J. PEACE RSCH. 5 (2009). ; see, e.g., Susan Thomson, The Darker Side of Transitional Justice: The Power
   Dynamics Behind Rwanda’s “GACACA” Courts, 81 J. INT’L AFRICAN INST. 373 (2011).
33
   See Richard Lewis Siegel, Transitional Justice: A Decade of Debate and Experience, 20 HUM. RTS. Q. 431 (1998).
   Thomson, supra note 32.
34
   See Siegel, supra note 33.
35
   See Eric A. Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117 HARV. L. REV. 761 (2004). see,
   e.g.,Marek M. Kaminski et al., Normative and Strategic Aspects of Transitional Justice, 50 J. CONFLICT RESOL. 295
   (2006).
36
   See Hans Petter Graver, HANS PETTER GRAVER, JUDGES AGAINST JUSTICE: ON JUDGES WHEN THE RULE OF LAW IS
   UNDER ATTACK (2014).


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                                   THE PRICE OF TRANSITIONAL JUSTICE


               considerations against retroactive laws, or alternatively amnesties. Eric A.
               Posner & Adrian Vermeule classify these techniques into: 37
                (a) The appeal to higher pre-existing law. Either this law is the constitution,
                      international law, or natural law.38 Although it may be advocated that
                      these rules, even in the absence of national law, signal the illegality of
                      the accused’s actions in breach of these legal principles, the historical
                      application of this norm did result in genuinely controversial legal and
                      political consequences.
                (b) Taking nominal law seriously, i.e., the exact words of the laws. This
                      methodology entails the rigid literal interpretation of the old-regime
                      rules, which could lead in many cases to better results than its implicit
                      goals.
                (c) Interpretive statutes to the old laws. Unlike the first two techniques that
                      courts usually practice, this technique is followed by the legislature to
                      smooth over the conflict between retroactive laws and procedural
                      legality. Accordingly, the legislatures may enact interpretive statutes
                      that proclaim an understanding of the past-regime laws that, despite
                      appearances, is different from the one these laws authorized or even
                      allowed.39
                (d) Retroactive extension of statutes of limitations.40
            – The second strategy is to explicitly adopt ex post facto criminal legislation,
               which means “a law is made after the doing of the thing to which it relates.”41
               This strategy initially contradicts the constitutional and international
               established legal principle nullum crimen nulla poena sine lege, which means
               that an act can be neither criminalized nor penalized without a pre-existing
               law.    However, some decisions were delivered by the European Court of
               Human Rights addressing the cases of lustration laws against the past
               communist in the east European countries that approved such laws against
               the allegations of retroactivity. These decisions’ reasoning depends basically
37
   Posner & Vermeule, supra note 35.
38
   The definitions and debates over what constitutes “natural law” are a subject of a voluminous legal literature.
   For more about its definitions and aspects, see Graver , supra note 36, at 143–151; Claus OffeCLAUS OFFE,
   VARIETIES OF TRANSITION: THE EAST EUROPEAN AND EAST GERMAN EXPERIENCE 89 (1996).
39
   An example of this technique is found in the Belgian case after World War II when the narrow scope of the
   treason crime in the penal code limited only to the military was widened via interpretive statues to include
   other forms of indirect collaboration. See Henry L. Mason , HENRY L. MASON, THE PURGE OF DUTCH QUISLINGS:
   EMERGENCY JUSTICE IN THE NETHERLANDS 129–30 (1952).
40
   For more about these techniques, see Posner & Vermeule, supra note 35, at 791–800.
41
   William Winslow Crosskey, The True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 UNIV.
   CHICAGO L. REV. 539, 539 (1947).


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             on two pillars: First, the emphasization of the justice considerations and
             their contribution to the establishment of good governance. The court, in
             one of its decisions, explicitly stated: “it is not a case of the retroactive application
             of criminal law but of an inexcusable mistake of law;”42 Second: that rule of law
             and justice considerations, and the trade-offs between them, should be
             interpreted and weighted in their historical, temporal and political
             contexts.43

        Besides these legal concerns, the political consequences of prosecutions are also
        questioned.     Fears of backlash by the past-regime members or supporters,
        especially if it was a military regime, are highly credible. The stronger and more
        controlling the past regime was, the wider is the range of the persons threatened
        with prosecutions’ initiatives, the more violent is the “counter-revolution.” It is
        like building an army against the new regime, which is still not adequately
        controlling the state because of the nature of the phase. Another result can be the
        political and social isolation of a group of society. Moreover, breaching the rule of
        law and free societies’ principles mentioned earlier may also threaten the new
        democracy.44 All of these are possible costs of prosecutions.

     • As mentioned in the last point, including all the suspects in the prosecution
        initiatives can mean prosecuting hundreds or even thousands of people depending
        on every regime’s government and police structure. The administrative costs of
        collecting the evidence and processing the trials against such a large number of
        accused persons will be remarkably high. These costs also include the time costs,
        as one of the guarantees of a fair trial is the right to appeal;45 the prosecutions
        usually take years of litigation. A suggestion of selecting a limited number of
        perpetrators could seem problematic for equality reasons, on the one hand, and
        the dilemma of “whom to select” on the other. Bruce Ackerman raises these
        pragmatic concerns about the transitional prosecutions.46 He argues that selecting
        the leading figures of the past regime will face the procedural problems of
        evidence since usually, their orders were implicit or unwritten. While selecting
        the minor figures faces the questions of liability in case they were executing
42
   Cynthia M. Horne, International Legal Rulings on Lustration Policies in Central and Eastern
   Europe:     Rule of Law in Historical Context, 34 LAW&          SOC.    INQUIRY 713, 735 (2009).
   https://www.jstor.org/stable/pdf/40539376.pdf?refreqid=excelsior%3Ae62287ca317d373f232a93ac478af73f
   (last visited Jun 27, 2021).
43
   Id. at 734–37.
44
   See Huyse, supra note 28.
45
   Amnesty International, supra note 12, at 182–91.
46
   BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION 69–98 (1992).


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                                    THE PRICE OF TRANSITIONAL JUSTICE


           higher orders, and also causes rage against the new regime for only “haunting the
           small fish.” However, Eric A. Posner & Adrian Vermeule reply to these arguments
           that this does not mean that: First, these are not typical difficulties of other
           organized crimes’ prosecutions, and second, they do not entail that the optimal
           number of prosecutions should be zero.47 In light of this debate, I think that the
           optimal number of prosecutions should be a result of a careful calculation of the
           anticipated costs and benefits of the different scenarios of the prosecuting range,
           which will differ from case to case. How to define and evaluate the costs and
           benefits for each scenario? The following cost-benefit matrix in table (1) will
           illustrate the entries that each C.B.A. of a prosecutions’ scenario should include.
           This is the first step, i.e., defining. The second step is evaluating; how to put weight
           on these entries to solve the different equations and compare the outputs? This
           process would ultimately be done through national consultations. Consulting
           national and international experts,                 civil society organizations,    victims’
           associations, and other institutions representing the pro-past regime preferences
           shall help each society put approximate numbers on these entries multiplied by
           their probability. Eventually, comparing each scenario’s outcome shall help each
           society choose the most efficient range of prosecution. For example, legal and
           economic experts would help to estimate 1. the expected time and administrative
           costs of a scenario that includes prosecuting only the past-regime first-line
           members, i.e., heads of authorities and ministers, and 2. the amount of financial
           resources illegally accumulated by these personnel that could be restored to the
           state treasury and the probability of its restoration. In the meantime, national and
           international organizations can then advise, based on previous comparative
           experience, what the extent and probability of this limited range’s impact are on
           public deterrence in the long run. This example continues for the rest of the
           entries and scenarios. The same strategy applies too to evaluating C.B.A.s for the
           other T.J. mechanisms.

        • The error costs are also remarkably high.                   In case of false convictions, the
           prosecutions usually lead to either death, a huge fine, or a prison penalty. While
           the second could mean a non-optimal allocation of financial resources, the first
           and the third mean a loss of human capital. In the case of wrong acquittals, the
           ex-perpetrators will have space by the law, the necessary expertise, and sufficient
           incentives to work against the new regime.                    Taking into account the high
           probability of error, the costs in this case are multiplied.48
47
     Posner & Vermeule, supra note 35, at 800.
48
     For more about administrative and error costs, see Hylton, supra note 29.
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      • Back to the point of over-deterrence, the costs of mass prosecution, which means
         prosecuting every suspected perpetrator, as long as they somehow belonged to or
         served the past regime, are not only the loss of human capital or financial
         resources. It also may stop police officers, public employees, and even political
         officials from taking responsibility and doing their job duties because they are
         afraid of being punished. This attitude entails minimizing the level of activity far
         under the optimal level while pushing the level of care to be far over the optimal
         level in regards to social welfare.


From these notes, I do not infer that the outputs of prosecution initiatives are entirely
negative.       I rather argue that different measures have to be selected for different
criminals and crimes and that prosecuting should not be for everyone to avoid the
previously mentioned hazards.49 Such a balance should vary from one case to another.50
In order to reach the optimal design for each case, the policy-makers will have to make a
C.B.A.
           For example, let us assume that the presented case involves a revolution over a
regime that had been committing severe human rights violations towards the majority
of its people for long decades to the extent that this policy became inherited in the
state’s deep system. Consequently, the benefits of prosecutions against members of that
regime, including achieving accountability for the majority of the population and
deterring any possible practice of this inherited policy, are overwhelming. In this case, if
the benefits could possibly either weigh or equal the costs, the policy-makers could think
of controlling the costs by minimizing the scale of prosecution. For example, in this case,
policy-makers may decide to prosecute only the heads of the involved authorities in
these violations while choosing less costly mechanisms to deal with the lower level of
criminals who constitute the more significant number. In this case, fewer prosecutions
limited only to major criminals can minimize the administrative, monetary, and time
costs significantly.           Moreover, decreasing the number of prosecutions avoids a
wide-ranged polarization in the society, and also limits the error costs that multiply each
time a new accused enters the prosecution circle through complicating the cases and
adding new details to them.
           Table (1) sums up the previous notes in a cost-benefit matrix to indicate the
weighted factors:

49
   A similar conclusion was reached by Jeremy Sarkin, The Tension Between Justice and Reconciliation in Rwanda:
   Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide, 45 J. AFRICAN. L.
   143 (2001).
50
   Customization upon the case is the same conclusion reached empirically by OLSEN ET AL., supra note 1.


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                                THE PRICE OF TRANSITIONAL JUSTICE




       Figure 1: Table (1) Cost-Benefit Matrix of Prosecution Initiatives as a T.J. Mechanism




It should be noted, though, that the number of inputs in the matrix under the Costs and
Benefits columns do not qualify to judge the weighing result. Each input of this shall
have an equivalent number that refers to its weight depending on the studied case, as
indicated earlier. The decision can be taken afterward by estimating the total output of
this mechanism alone, on the one hand, to decide to what extent it should be applied. On
the other hand, a comparison between the output of this mechanism and the other T.J.
mechanisms’ outputs could then lead to choosing some of them over others. This
comparison can be made using models that qualify for the expected costs and benefits of
every mechanism. This weighting or evaluation process cannot be constant, i.e., there
cannot be a standard evaluation that will always lead to prevailing prosecutions over
truth commissions, for instance, or limited prosecutions over medium-ranged
prosecutions. The equation’s entries as explained in the C.B.A. are probably constant in
every case, but the number that shall be put on these entries to solve the equation,
evaluate its output, and compare it to other potential outputs shall differ depending on
the circumstances of each case. As mentioned above, this evaluation or quantifying
process is to be done through multiple parties, including victims, experts, policymakers,
etc.

51
 Besides the scenarios referred to earlier, the debate over the legality and constitutionality of the post-
autocratic regimes is huge. See for example, Graver, supra note 35, at 144. Consequently, adopting a specific
philosophy of what counts as “constitutional” will decide the weight of this cost.


                                                    112
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Consequently, there is no way the process will not be subjective and independent of
these parties’ personal views.            For example, some people would have a personal
preference for “justice” considerations over “practical” considerations. However, the
more parties are involved, and the more diverse the background they come from, the
more likely this evaluation process can get closer to an accurate result that fits each
given society’s preferences and nature. This methodology shall also apply to weighing
the other mechanisms.



     1.2. FACILITATING INITIATIVES IN RESPECT OF THE RIGHT TO TRUTH

This category of mechanisms aims to assist post-conflict societies in investigating the
truth behind human rights violations. This process is usually undertaken by truth
commissions [hereinafter T.C.], which are “non-judicial or quasi-judicial investigative
bodies, which map patterns of past violence and unearth the causes and consequences of
these destructive events.”52 The mission can also be done by commissions of inquiry, or
other fact-finding committees, which are similar to the truth commissions but usually
operate under narrower mandates. Publishing the final results and recommendations is
part of the process. Moreover, the documentation and archiving of the related evidence
and materials help reveal the truth about the past, achieve the justice necessary for the
transition, and keep the conflict’s history.53
          Priscilla B. Hayner gave in 1994 four primary elements for defining truth
commissions: 1) they focus on the past; 2) they are not focused on a specific event but on
investigating the violations of I.H.R.L. or I.H.L. over a specific period; 3) they are
temporal and cease to exist by the submission of their report; 4) they are endowed with a
sort of authority by their sponsor, which gives them the access to more information,
protection, and impact for their report.54 In 2011, she revisited these parameters and
added a fifth element: 5) they engage broadly and directly with the affected population
and gather information upon their experience.55                     In her new approach, Hayner
emphasizes that what differentiates T.C. from other similar phenomena is that they
intend to improve the social understanding and acceptance of the past events to
influence the future, not just to resolve specific facts. The T.C.’s aim, according to


52
   United Nations, supra note 2, at 8.
53
   Id.
54
   Priscilla B. Hayner, Fifteen Truth Commissions-1974 to 1994: A Comparative Study, in 16 HUM. RTS. Q. 597.
55
   PRISCILLA B. HAYNER, UNSPEAKABLE TRUTHS: TRANSITIONAL JUSTICE AND THE CHALLENGE OF TRUTH COMMISSIONS 11–
   2 (2010). The other four elements were subject to marginal amendments that shall not change their nature
   or affect.


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                                  THE PRICE OF TRANSITIONAL JUSTICE


Hayner, is to change policies, practices, and relationships in the future in a manner that
respects and honors the people who went under the past’s experience.
           It is argued that not only do T.C. help to find the truth behind crimes for
accountability purposes, but also they give recognition to violations of the past, which is
necessary to both the victims and the other sectors of the society who are pro the old
regime. On the one hand, for victims, revealing the truth about the violations against
them, confessing the crimes by perpetrators, and the interaction between victims and
perpetrators that might also end with apologies, this whole process involved having a
public voice for the victims, can have a healing effect for them.56 On the other hand,
when supporters of the past regime hear from both victims and regime-members the
details and facts regarding the violations which they were subject to, this could make
them understand the catalysts of the revolution and the necessity to T.J. process,57
which mitigates their opposing behavior toward the transition process. Both these
effects together not only help the society to make a clear break with the past but also to
minimize the polarization between its forces and the probability of a counter-revolution.
Similar reasonings motivated the formation of T.C. in many countries, getting out of
violent conflict and crises, including South Africa, Haiti, Guatemala, and others.58
However, these motivations do not necessarily turn to actual outcomes for many
constraints that relate in part to the costs of T.C.s that will be explained in greater detail
and to the difficulties of power-sharing in post-crisis societies generally. In the last three
examples, concerns related to race biases in Guatemala, time and financial constraints,
shortage of using qualified experts, limited publication of the final report in the case of
South Africa, the past-regimes destroying most of the archive detailing their crimes, and
the failure sometimes in formulating a clear conception of the “truth” these
commissions are looking for assuming that it would be an automatic result of their
mandate application, all constrained the complete achievements of these motivations.59




56
   Martha Minow, The hope for healing: What can truth commissions do?, in TRUTH V. JUSTICE: THE MORALITY OF TRUTH
   COMMISSIONS 235 (Robert I. Rotberg and Dennis Thompon eds., 2010). ; HOLLY L. GUTHREY, VICTIM HEALING AND
   TRUTH COMMISSIONS: TRANSFORMING PAIN THROUGH VOICE IN SOLOMON ISLANDS AND TIMOR-LESTE (2015).
57
   OLSEN ET AL., supra note 1 at 155.
58
   Audrey R. Chapman & Patrick Ball, The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa,
   and Guatemala, 23 HUM. RTS. Q. 1 (2001). Hayner, supra note 54.
59
   Chapman and Ball, supra note 58.


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The economic rationale of the truth commissions and other truth revealing mechanisms
is divided into four main directions:

       1. T.C.s signal the acknowledgment of the victims’ losses, the criminals’ accountability,
           and the commitment to human rights and the rule of law to all the parties of the
           transitional phase: the victims, the past regime, the new regime, and the judicial
           authorities.

       2. The truth commissions can have a minimizing effect on the polarization in the
           society between the supporters and oppositions to revolutions, and also the
           bystanders. When victims speak up about the violations they have been subject to,
           this gives a forum within which the other parties can, for the first time,
           acknowledge the victims’ stories and their rights.60 Consequently, through T.C.,
           society can have a clean break with its past.

       3. In case the truth commissions precede the prosecutions, they minimize the
           information costs for conducting these trials.       This advantage also applies to
           institutional reforms as they give clear information about the past system, the
           mechanisms were used to achieve its hostile policies, and the personnel involved
           in these policies.

       4. In case amnesties are given to the witnesses or perpetrators who give aid to these
           commissions, under the condition that they are not accused of gross human rights
           violations, this will influence the whole T.J. process in different ways. First, it will
           minimize both the error and administrative costs of the prosecution thanks to the
           information and cooperation they will provide; Second, it will incentivize the allies
           of the past regime and its supporters to shift positions and take the side of the new
           regime as they see that they can have a place in this new regime if they cooperate
           with it.      To maximize this influence, though, amnesties’ payoffs need to be
           guaranteed even for perpetrators who did not give information until a late stage,
           so they do not abstain from positively responding to such initiative even if they
           resisted in the beginning due to low trust levels.




60
     OLSEN ET AL., supra note 1 at 155.


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However, the truth commissions also have constraints that may limit their success.
Priscilla B. Hayner lists these constraints,61 and they include:

     1. The mandate:         The way these commissions are called for and formed is
        problematic. Because of the fragile political context and the time constraints, they
        are usually not formed through a sufficient public debate, discussion, or
        referendum, which contradicts many human rights advocations.62 This reflects a
        principal-agent problem63 between the public and the policy-makers who run
        these commissions, where the information between the two parties is always
        asymmetric, and their preferences might align or not. This situation may lead to
        various consequences. Among these possibilities, there could be paternalistic
        behavior by the policy-makers that ignore the people’s desires or expectations
        because the firsts see them as irrational or inefficient. There also could be a
        rent-seeking behavior of the policy-makers that disregard the original T.J. goals
        and abuse the people’s ignorance of the sophisticated details or techniques of the
        mandate to achieve personal or elite payoffs. Another scenario could be heavy
        pressure from the public opinion to eliminate any form of amnesties even if the
        process could not be completed without an incentive for past perpetrators to
        cooperate. The possibilities go on.

     2. The political constraints: Despite what has been referred to in the benefits of the
        truth commissions as a minimizer of the polarization in the society between pro
        and against past-regime sides, the later reveal of the truth can also work in the
        opposite direction. There is a risk that revealing the crimes heats the hatred
        against the members of that regime and, consequently, makes integrating them
        into the new regime more difficult. The answer to the question in which direction
        this mechanism will work can only be given through future empirical studies. The
        political constraints may also include the desire to preserve the image of some of
        the perpetrators mentioned in these investigations.                         In this case, the
        policy-makers’ payoffs from keeping at least part of the truth hidden are higher
        than the payoffs of signaling the new regime’s control to the past one.

     3. Restricted access to information: Some of the information needed for T.C.s to
        achieve their goals may be sensitive to national security, destroyed by competent
        persons, or blocked because of a conflict of interests. In any case, information
        costs can be too high.
61
   Hayner, supra note 53.
62
   Id.
63
   For more on agency problems in the law and economics sphere, see PARISI, supra note 24, at 5–9.


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     4. Lack of resources: The process of investigation and collection of past violations is
        financially costly. Not all nations have the necessary financial, human, and time
        resources necessary for achieving such a process. In other terms, administrative
        costs can be quite substantial.                  This obstacle may be overcome through
        international aids, and there are already comparative experiences that involved so.
        However, accepting these aids and making the best use of them depends on the
        country’s international relations and relevance, the acceptance of the national
        parties of receiving international aids and involving international parties in the
        national T.J. process, and how far the international experts can understand the
        national context they aim to help within and communicate effectively with its
        parties.




The interaction and sequence between prosecutions and truth commissions are
problematic and complicated. While the first aim at imposing criminal sanctions on the
guilty accused, the second aim at recording the truth and acknowledging it, to keep a
record of the history, learn from it, and make sure that the victims are heard. They
usually complement each other; however, in some cases, the truth commissions play as a
substitute for prosecutions in case they were prevented because of amnesties or by
force.64 The difficulty is, however, to find the best sequence of them. Should trials
precede truth commissions or the opposite, or should they be simultaneous? Alexander
Dukalskis presents these three possible scenarios and the pros and cons of each of
them.65       The output of each scenario depends on the different contexts of every
transition.      Scenario (1) is when the truth commissions precede the prosecutions;
Scenario (2) is when prosecutions precede truth commissions; Scenario (3) is when they
work simultaneously. Depending on the literature’s concerns and remarks on the truth
commission’s performance generally and their interaction with trials in specific, in
addition to the precedent normative analysis, one can draw a picture of the pros and
cons of each scenario. I will integrate each scenario’s expected costs and benefits in the
cost-benefit analysis of the truth commissions.
           From the previous analysis, a cost-benefit matrix of the truth commissions can be
presented as follows in table (2):


64
   Douglass W. Cassel & Jr., International Truth Commissions and Justice, in TRANSITIONAL JUSTICE; VOLUME I: GENERAL
   CONSIDERATIONS (Neil J. Kritz ed., 1995); Alexander Dukalskis, Interactions in Transition: How Truth Commissions
   and Trials Complement or Constrain Each Other, 13 INT’L. STUD. REV. 432 (2011); Hayner, supra note 54.
65
   Dukalskis, supra note 63.


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                           THE PRICE OF TRANSITIONAL JUSTICE




       Figure 2: Table (2) Cost-Benefit Matrix of Truth Commissions as a T.J. Mechanism




The general costs and benefits refer to the variables present in any mechanism of truth
commissions regardless of its type of combination with prosecution initiatives. The costs
and benefits by scenario refer to, in addition to the previous general variables, the costs
and benefits of the truth commissions that change depending on the selected scenario.
Just as in the prosecution initiatives, these variables are abstract in this analysis, and
they would take different values depending on the party quantifying them and their

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expected payoffs.           Consequently, the more multilateral the process is, the more
successful it is expected to be.
           Note also that the “standard error costs” refer to the margin of error possible
in any mechanism, as different from the “error costs,” referring to the errors in judicial
decisions.



     1.3. DELIVERING REPARATIONS

The reparation programs seek to redress the victims of human rights violations through
material or symbolic benefits.66 The right to reparation of the victim in case of violations
of I.H.R.L. and I.H.L. is a well-established principle under international law.67                             This
reparation may take different forms.
           The forms of reparation include: 1) Restitution which aims at restoring, to the
victim, the situation before the violation, to the possible extent; 2) Compensation which
provides financial recognition for the purpose of redressing violations; 3) Rehabilitation
which entails providing services for the victims to restore their dignity, health, and
reputation, including legal, medical, and psychological care services; 4) Satisfaction which
aims at restoring the dignity and reputation of the victims through different measures
like judicial decrees or official declaration, public apology, the acknowledgment of
violations against the victims, commemorations, and tributes to the victims; 5)
Guarantees of non-repetition by ensuring effective civilian control over the military and the
police, and the obligation of the different parties by the international legal standards of
due process and fairness.68
           Reparations as a T.J. mechanism have the same economic reasoning as tort law
with respect to internalizing the harm caused by the wrongful party to the victim and
inducing other persons to invest in taking cautions to prevent such harm. It is also a way
through which law manages the bargaining between parties who have relationships with
relatively high transaction costs, taking into consideration the possible difficulties of
direct bargaining between the victim and the wrongdoer.69                              These difficulties are

66
   United Nations, supra note 2, at 8–9.
67
   See generally Theo Van Boven, Study Concerning the Right to Restitution, Compensation and Rehabilitation for
   Victims of Gross Violations of Human Rights and Fundamental Freedoms, in TRANSITIONAL JUSTICE; VOLUME I:
   GENERAL CONSIDERATIONS (Neil J. Kritz ed., 1995).; Lisa J. Laplante, The Plural Justice Aims of Reparations, in
   TRANSITIONAL JUSTICE THEORIES 66 (Susanne Buckley-Zistel et al. eds., 2014). ; Luke Moffett, Transitional Justice
   and Reparations: Remedying the Past?, in RESEARCH HANDBOOK ON TRANSITIONAL JUSTICE: RESEARCH HANDBOOKS IN
   INTERNATIONAL LAW SERIES 377 (Cheryl Lawther et al. eds., 2017;CONOR MCCARTHY, REPARATIONS AND VICTIM
   SUPPORT IN THE INTERNATIONAL CRIMINAL COURT (2012).
68
   United Nations, supra note 2, at 9; Van Boven, supra note 67, at 548–9.
69
   See ROBERT COOTER & THOMAS ULEN, LAW & ECONOMICS 189–90 (2011).


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                           THE PRICE OF TRANSITIONAL JUSTICE


supposed to be more intense in the case of a transition from an autocratic rule that
involved mass violations against the victims’ human rights.
        However, in many cases, reparations cannot, alone, achieve the internalization
and the avoidance of the costly direct negotiation between the victim and the wrongful
party, for two main reasons:

   1. By their nature, as mentioned earlier, reparations include other T.J. mechanisms as
      well, like investigating the truth and Institutional Reforms. For example, the fifth
      T.J. mechanism, which requires the guarantee of non-repetition, will necessarily
      entail an institutional reform.

   2. Most importantly, some damages either cannot be assessed, or their assessment
      costs will be significantly high compared to the costs of other mechanisms. For
      example, what could be the correct way to assess the harm caused by a corrupted
      election’s authority that was in power for several years or even decades?
      Moreover, in case of an error in the reparations’ allocation, this will result in an
      inefficient allocation of the already significantly limited resources because of the
      phase nature, as indicated earlier.

Additionally, the more powerful the past regime, the longer it ruled, and the more severe
and common its violations, the more victims it should have, and the more resources are
needed to cover their redress, especially if the financial costs of these reparations are not
covered by the past-regime members.
        However, in case the state will be responsible for delivering the reparations,
rather than the wrongful persons directly as a consequence of their criminal liability, the
reparations mechanism has a competitive advantage. The probability of proving only the
damage that the victims suffered from is significantly higher than the probability of
proving the criminalized acts against specific persons and the causation linkage between
these acts and the damage. Many criminal evidence rules and criminal law procedures
are lifted in case of seeking the proof of damage rather than seeking the criminal liability
of specific persons. This advantage is especially significant in big-scale crimes, which
affect a wide range of victims and crimes in which the probability of the proof of
criminal liability is low. The United Nations Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power states under its section addressing the “Victims of
Crime”, that:




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            2. A person may be considered a victim, under this Declaration, regardless of
            whether the perpetrator is identified, apprehended, prosecuted or convicted
            and regardless of the familial relationship between the perpetrator and the
            victim. The term “victim” also includes, where appropriate, the immediate
            family or dependents of the direct victim and persons who have suffered harm
            in intervening to assist victims in distress or to prevent victimization.70

However, there will still be costs for proving the harm that happened to the presumed
“victim,” beyond this there are potential erroneous costs in case someone was proved to
be a victim, or vice versa; a standard error in any possible mechanism.
          This separation between the criminal conviction and the reparations could also
be an effective way to internalize the harm of the crimes with less polarization in the
society because it does not require holding specific persons accountable. Moreover, it
saves human and financial capital that is needed for prosecutions.71 However, the value
of these advantages depends on the source of these reparations. Is it covered from the
state budget or by international actors, or through payments that the wrongdoers secure
in exchange for guarantees given to them to escape the criminal liability or the possibility
of political isolation? In both cases, there will be costs.
          This issue brings us back to the error costs point. Besides the standard error costs,
there is a form of reparations that could involve an additional margin of error. This form is
the suspension of the custodial or financial sanctions against the members of opposition
to the past-regime. The assumption that whoever was prosecuted by the past regime for
a crime that has a political aspect, like: terrorism, violence crimes, attempt to change the
regime (in the systems that have such a crime), membership in an illegal organization,
or any other form of a relevant crime, can be either proven or falsified. However, given
the time element and the high administrative costs, this can be either highly costly or, in
some cases, impossible. In case the sanctions against these “victims” are not suspended
or re-evaluated, this disturbs the goals of the whole process and adds new enemies to
the new regime. In contrast, in case the sanctions were mistakenly suspended, the harm
that can be caused by these “victims” can be very severe. For example, there are cases
where members of past illegal organizations were subjects of amnesties in the context of
T.J. processes, who were proven later to have partaken in terrorist behavior.



70
   See United Nations: Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;
   General Assembly Resolution 40/34 (November 29, 1985), , in Transitional Justice; Volume III: Laws, Rulings,
   and Reports 646 (Neil J. Kritz ed., 1995).
71
   Note that in this part there is no comparison between reparations and prosecutions as two mechanisms of
   T.J., but an explanation of the possible advantages of separating reparations from criminal liability.


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                                 THE PRICE OF TRANSITIONAL JUSTICE


The Egyptian case could be a useful reference in this regard.72 In other words, the lack
of due process towards the past-regime combats is not by itself a guarantee that they are
entitled to a declaration of the accusations against them or of other possible accusations.
This is a probable error-cost related only to this form of reparations. I call this the “False
Benefit of Doubt Error.”
            Table (3) shows the C.B.A. of reparations as a T.J. mechanism:




               Figure 3: Table (3) Cost-Benefit Matrix of Reparations as a T.J. Mechanism



Note that this C.B.A. represents the case where reparations are granted on the basis of
the harm, as explained earlier, and not based on a criminal conviction or tort liability.
Consequently, no probability of error costs is added to the costs because reparations, in
this case, are not dependent on other judicial decisions other than decisions related to the
reparation itself, if any. Thus , the error that could happen is just the standard error in any
mechanism. However, if the reparation mechanism was designed in a way that requires a
judicial trial that identifies and convicts a perpetrator, then the judicial procedures’ error
costs should be included in the calculation as well, among the other costs and benefits of
the prosecutions.

72
     See Hossam Bahgat,      Who Let the Jihadis Out?,       MADA MASR (Feb.                16,   2014),
     https://www.madamasr.com/en/2014/02/16/feature/politics/who-let-the-jihadis-out/.


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     1.4. INSTITUTIONAL REFORM

The institutions involved in causing the conflict by breaching human rights have to be
transformed into institutions that respect these rights and the rule of law’s values to
prevent the recurrence of these violations. This transformation should include both
lustration and training on applying human rights law and humanitarian law standards.73
           Institutional reforms are a mechanism that can have a broad or limited meaning.
Its limited one refers to lustration, purges, and vetting, which are processes that aim to
change the corrupted personnel existing within the state institutions. Its broad meaning
refers to changing the state institutions in a way that prevents the repetition of the past
violations; in other terms, the repetition of policies and state actions that represent the
same philosophy and approach of the past regime. In the case of revolutions over
autocratic regimes, this includes human rights violations and autocratic behavior. Under
this interpretation, constitutional change, structural change of the authorities’
performance, mentoring institutions, and any other effort to stop the culture and the
institutional cycle that produced the past, are all considered as part of T.J. Although the
second meaning sounds more crucial to achieve T.J. goals, it is hard to be specified in
specific policies, and it is too broad to be tackled within these research limitations.
Consequently, I here adopt the narrow meaning of institutional reforms.
           Because of its legal complications and mixed-blessings, lustration is usually the
most problematic aspect of institutional reforms; hence , it will be the focus of this
sub-section. Lustration is “the disqualification and, wherein office, the removal of
certain categories of office-holders under the prior regime from certain public or private
offices under the new regime.”74                 Lustration has many complications and various
advantages and disadvantages. I will first discuss its legal complications and then present
the economic reasoning behind lustration laws and their social costs and benefits.
           Some of the legal complications of the application of lustration are the typical
challenges of prosecution initiatives referred to earlier, including retroactivity, hardships
of collecting sufficient evidence, and other due process considerations.75




73
   United Nations, supra note 2, at 9.
74
   Herman Schwartz, Lustration in Eastern Europe, in TRANSITIONAL JUSTICE: HOW EMERGING DEMOCRACIES RECKON
   WITH FORMER REGIMES. VOLUME I: GENERAL CONSIDERATIONS 461, 461 (Neil J. Kritz ed., 1995).
75
   Id.; See Susanne Y. P. Choi & Roman David, Lustration Systems and Trust: Evidence from Survey Experiments in the
   Czech Republic, Hungary, and Poland 117 AM. J. SOCIO. 1172 (2012).


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However, besides these complications, there are other specific legal challenges of applying
lustration laws.76 These challenges include:


     1. Considerations of inequality and discriminatory treatment as a cause of the breach
         of I.H.R.L.77 and unconstitutionality of lustration laws accordingly;

     2. The scope and basis of lustration or vetting processes.78 For example, dismissing the
         collaborators of the past regime is faced with problems of collective responsibility
         and guilt, and the legality of the orders given to them by the previous legal system;79

     3. In case lustration was applied directly through the legislature or an executive act
         without prior prosecutions, this could be challenged in a court as a denial of the
         right to a fair hearing guaranteed by I.H.R.L.;80

     4. Lustration laws may also violate individuals’ right to work.81


These considerations, however, could be countered by the following arguments:


     1. The right to equal treatment and to work guaranteed by I.H.R.L. and most of the
         constitutions do not prevent the state from applying sanctions on its citizens or
         listing specific conditions for some of its offices;

     2. These mechanisms can be justified by the protection of the state against threats of
         its order;82

     3. Lustration laws as administrative or labor laws have privilege over the criminal
         laws used in the ordinary prosecutions. This advantage is the application of the
         “Presumed Liability” principle, or “responsabilité objective / responsabilité sans faute”
         as known originally and established by the French state council and legal
76
   Beside these challenges, a typical argument against lustration laws is that some people were just following
   the orders, especially the minor officials. There is a huge debate on this point. For more on this, see Graver,
   supra note 36, at 148; Posner & Vermeule, supra note 35, at 778. Whatever side of the debate one can take,
   this still shows how it could be better to lustrate only the main officials, not the minors as well.
77
   See Roman Boed, An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice, 37 Columbia
   J. Transnatl. Law 357, 357–402 (1999).
78
   Lustration and vetting are usually used as synonyms in the literature. Although they are both forms of
   personnel institutional reforms after crises, there is a scholarly work on differentiating between them on
   the base that the last is more general than the first. According to this differentiation, the lustration policies
   are more gravitated to the extra-regional cases. For more on this, see Cynthia M. Horne, Transitional Justice:
   Vetting and lustration, in RESEARCH HANDBOOK ON TRANSITIONAL JUSTICE 424 (Cheryl Lawther, Luke Moffett & Dov
   Jacobs eds., 2017).
79
   Schwartz, supra note 74, at 463–4.
80
   Boed, supra note 77.
81
   Id.
82
   Id. at 399.


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        literature, on the leading officials of the past-regime. This principle dispenses with
        the “fault” element of proving the liability and takes into account only the
        elements of “harm” and “causation.”83 Consequently, it could be an effective
        strategy to solve the low probability of collecting sufficient evidence in these cases.
        The principle of Presumed Liability is originally used for establishing monetary
        damages. However, up to my knowledge, there is no legal barrier to apply another
        aspect of the administrative liability, which is the qualification conditions of the
        state offices, as long as it is not a penal sanction, to avoid the unconstitutionality
        concerns based on the breach of the principle of the “Presumption of Innocence.”84

     4. Finally, the rulings, decisions, and opinions of the competent international legal
        bodies, mainly the European Courts of Human Rights, International Labor, and the
        Office of the United Nations High Commissioner for Human Rights [hereinafter
        O.H.C.H.R.]    in lustration cases are not anti-lustration per se.                      They forgo the
        challenges of retroactivity, discrimination, and employment barriers, as a part of
        the whole democratization structure. As referred to earlier, they also advocate for
        protecting and interpreting the rule of law and justice considerations in their
        historical context and accordingly, favoring the compelling interests of achieving
        justice and strengthening the new democracy, in such cases of exception like
        transitioning from crises or autocratic regimes. The problem with lustration laws,
        according to these rulings, is not with the philosophy of these laws, but with their
        implementation.85 There should be legal guarantees for lustration processes to be
        aligned with international legal principles. These rulings, added to other literature
        on lustration as a mechanism of T.J.,86 advocate for two essential considerations to
        be taken into account to avoid the costs and illegal concerns of lustration:

          (1) The guarantee of fair hearing, due process, legal certainty, and clarity;

          (2) The individualization of the process, which means that a differentiation
               should be made between the different officials of the past regime. According
               to that differentiation, the lustration decisions should be made after a proper
               investigation, hearing, and evaluation of the relevant official’s fault and
               his/her possible threat to the new order. In other terms, an evaluation of
83
   See Raed Mohamed Adel Bayan, Al Asas Al Qanooni Lelmasooleya Al Edareya Bedoon Khataa : Derasa Moqarna [The
   Legal Basis for the Administrative Responsibility without a Mistake : A Comparative Study], 43 Dirasat Shari a Law
   Sci. 289, 289–304 (2016), http://platform.almanhal.com/CrossRef/Preview/?ID=2-90655.
84
   For more about the “Presumption of Innocence,” see Kenneth Pennington, Innocent Until Proven Guilty: The
   Origins of a Legal Maxim, 63 THE JURIST 106 (2003).
85
   Horne, supra note 42; O.H.C.H.R., See Rule-of-Law Tools for Post-Conflict States: Vetting: an operational framework
   (2006), https://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf.
86
   Boed, supra note 77; Choi & David, supra note 75; Schwartz, supra note 74.


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                                   THE PRICE OF TRANSITIONAL JUSTICE


               whether the costs of their violations could be cost-justified. However, is this
               possible? This takes us to economic reasoning.


The question then remains: why do states need to apply lustration processes in the first
place?      Unlike other institutional reforms, lustration and similar measures have a
punishment aspect that is in the core basis of the critics mentioned above. Lustration
policies not only reform the institutions but also punish the personnel involved in past
violations by preventing them from the benefits of one of their constitutional rights, i.e.,
the right to hold public offices. Consequently, a significant aspect of the lustration’s
rationale could be found in the original debates over the reasoning, effectiveness, and
efficiency of punishment per se. The economic reasoning of crime and punishment is
subject to lengthy debates.87 Some scholars reason the notion of punishment by the
external cost that crime causes, which needs to be redressed.88                              Others give more
attention to the unconditional deterrence that punishment should achieve to force
criminals not to substitute a market transaction.89 However, besides criminal laws’ job in
pricing the harm of the crime to internalize it and achieving deterrence to other people
to not commit the same crimes, some actions are criminalized to prevent their repetition
by the same perpetrators.90 Accordingly, in some cases, the aim of the punishment is not
the typical mission of public deterrence or pricing, but to prevent the repetition of the
same crime by the same persons through their elimination from positions they can use
to cause the harm, or in other words, the incapacitation of the criminal.91 The literature
refers to this distinction as specific deterrence vs. general deterrence.92 An example of
that is imprisoning a criminal, forcing him/her to stop their criminal activity.93 This
reasoning applies to the category of crimes, of which a small proportion is socially
cost-justified. An example of a socially cost-justified crime is theft under the dire of
deadly hunger. Nevertheless, this is a low probability and might be non-criminalized at
all. So, the smaller the proportion of such a socially cost-justified crime is, the smaller
the social cost is , and the higher the social benefit of its prevention is, and that is why
such crimes tend to be prevented instead of priced.94
87
   Veljanovski, supra note 5, at 241–262;Samuel Cameron, The Economics of Crime Deterrence: A Survey of Theory
   and Evidence, 41 KYKLOS INT’L REV. SOC. SCI. 301 (1998).
88
   Becker, supra note 7.
89
   See, e.g., RICHARD POSNER, Criminal Law, in ECONOMIC ANALYSIS OF LAW 273 (9th ed. 2014).
90
   Posner, supra note 29; See also Charles H. Logan, Deterrence and Incapacitation: Estimating the Effects of Criminal
   Sanctions on Crime Rates, 9 CONTEMP. SOCIO. 389 (1980).
91
   A. MITCHELL POLINSKY & STEVEN SHAVELL, The Theory of Public Enforcement of Law, in HANDBOOK OF LAW AND
   ECONOMICS 403.
92
   For a review, seeMark C. Stafford & Mark Warr, A Reconceptualization of General and Specific Deterrence, 30 J.
   RSCH. CRIME & DELINQ. 123 (1993).
93
   Imprisonment as an incapacitation measure is, though, debatable. For more, see Isaac Ehrlich, Crime,
   Punishment, and the Market for Offenses J. ECON. PERSP., Winter 2996, at 43.
94
   Posner, supra note 29, at 1214–5.
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           the common crimes involved in T.J. processes, including genocide, torture,
corruption, and other human rights violations, be cost-justified? The cost of these
crimes is too high that only a small proportion of them could be cost-justified, and then
prevention via lustration can be argued to be more efficient than just punishing the act if
it repeats.
           Incapacitation can be achieved through different mechanisms, not only
imprisonment but also by nullifying a license to perform a specific activity, for
example.95 In the case of T.J., the same reasoning applies to the rationality behind
lustration laws. It is not about internalizing the harm of the crimes, because this can be
done through reparations. It is also not only about deterrence, because this can be
achieved through criminal prosecutions. However, the main reasoning is preventing the
same corrupt persons or the persons who adopted past-regime strategies from
corrupting or disturbing the new regime.
           The question of the social cost and benefit of such laws and whether
incapacitation should be executed through lustration or imprisonment, or even the
death penalty, is however, subject to the calculations of every different society,
depending on other variables. As presented by A. Mitchell Polinsky & Steven Shavell, the
basic equation is that the harm caused by the prospective criminal is larger than the cost
of his/her incapacitation.96 Some studies find that this harm is reduced with age,97 i.e.,
the older the criminal is, the less is the harm expected to be caused by him/her to
society if he/she is incapacitated. This tendency could be due to the lifetime left for
his/her potential criminal activity or health reasons. In our case, though, it can be
argued that it is reduced by time, given that the more time passes since a transition, the
new regime increasingly consolidates, and consequently, the ability of the past-regime
members to spoil the transformation and repel the new rules decreases. Accordingly, the
incapacitation should continue as long as the cost of the harm caused by the relevant
member of the past regime is more than the cost of his/her incapacitation. These costs
are to be assessed by the policy-makers, with technical experts’ help, at the given point
in or after the transition. For the side of the equation reflecting the cost of the harm
caused by the considered member, there should be:

      • A variable standing for a rough estimation of the costs resulted from his/her past
        behavior divided by his/her years of service to reach an estimation of these costs
        per year. The word “rough” is used because many of these past-violations costs are
95
   See POLINSKY & SHAVELL, supra note 91, at 443; see also James L. Nichols & H. Laurence Ross, The Effectiveness of
   Legal Sanctions in Dealing with Drinking Drivers, 22 J. SAFETY RSCH. 117 (1991).
96
   SeeMcNollgast, The Political Economy of Law, 2 in Handbook of Law and Economics Volume 2, 1651-1738 (2007).
97
   POLINSKY & SHAVELL, supra note 91, at 443.


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                             THE PRICE OF TRANSITIONAL JUSTICE


         hard to estimate and have long-lasting domino effects. Consequently, what would
         be feasible is assessing only the direct impact of the rent-seeking activity; for
         example, evaluating the financial losses caused to the national treasury because of
         allocating lands to well-connected investors without fair compensation to the
         state. Some harms would be easier to evaluate than others, and the evaluation
         process itself is costly. That is why these calculations are not widely common.

       • The previous variable would be multiplied (1) with the probability of repeating the
         past behavior given the extent of the new-regime consolidation and control over
         the authority where this member operates. (The variable would be multiplied (2)
         also with the number of years remaining in his/her service until retirement.)

 For the equation’s side concerning the cost of incapacitation, the exact general costs of
 lustration indicated in table (4) apply (G). However, an added variable would be the
 probability of the availability of an efficient member of the new regime to replace the
 considered past-regime member(Po ).
 Accordingly, to apply incapacitation, Cy ×Pr ×N should exceed G − Po .
            However, Richard A. Posner refers to a critical qualification that should be
 entered into the calculation, which is the effect of the offenders’ elasticity of supply.98 If
 this elasticity is “very high,” the effect of taking one criminal out of the scene would be
 making room for another criminal to get in.99 This theory may not apply to the crimes
 committed amid the revolution incidents because of the mass violation and chaotic
 nature of the situation, which influences a rational actor’s standard calculation.
 However, taking into account the high payoffs that politicians can expect of the
 rent-seeking activity manifested in autocratic policies, this could be possible in the case
 of T.J. also. Lustration policies are, indeed, ex-post arrangements dealing with the
 old-rulers; they will be removed from power and replaced by new-rulers adopting the
 revolution’s goals. However, lustration alone does not guarantee the non-repetition of
 the past. The new-rulers themselves, or the officials who were removed from their
 positions in the first place, could still have tempting incentives to reproduce their own
 autocracy, especially that this behavior would be per se in their self-interest.          This
 rationale justifies the combination of this mechanism between “lustration” and
 “training” under one mechanism labeled “institutional reform”. If it is only for removing
 the past regime’s criminals, there will be no effective impact of this mechanism. The aim
 is to prevent the repetition of the crime, or reducing its probability to be more specific,
 because a zero-crime probability would be too costly100 and reducing the supply of
98
    Posner, supra note 29.
99
    Id. at 1217.
100
    Id. at 1215.
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 criminals. The way to do so is by accompanying the lustration laws with training, policy
 reforms, and monitoring that could guarantee the transformation of the institutions
 themselves.
 On the one hand, the use of lustration laws may also result in a loss of human capital by
 diminishing the dismissed persons’ technical and administrative expertise.101 The more
 persons lustration is applied to , the more is the loss of human capital, and consequently,
 the weaker the institutions may become; thus, the higher is the probability of
 polarization in the society and an organized backlash by the dismissed officials. These
 drawbacks could apply to other mechanisms as well, like criminal prosecutions. As
 mentioned earlier, the weighing of the effectiveness, cost, and benefits will differ by case
 depending on other variables. For example, the range of members targeted by lustration
 systems and/or prosecutions.
           On the other hand, keeping the key past-regime officials increases the
 probability of the repetition of their past performance and leads the people to suspect
 the transparency and loyalty of the new regime to the values of the revolution, i.e., the
 distrust in the prior regime because of its corrupted policies could spill over to the
 relationship between the people and the new-regime.102 Some systems, however, tried
 to escape this dilemma by adopting what is called “lustration systems,” which
 differentiate between three strategies of lustration: dismissal, exposure, and confession.
 Dismissal aims to purify the government by sacrificing its “tainted officials”, but by
 demeaning them socially; exposure aims to increase the transparency of the
 government, but inadvertently stigmatizes its “tainted officials” socially; confession is an
 act of self-purification by the “tainted officials” to be “morally re-born” under new
 conditions     103 .   However, a systematic empirical study is still lacking to measure these
 mechanisms’ effectiveness in achieving the original purposes of lustration laws.104 For
 example, although they can save the loss of human capital, their impact on preventing
 new corruption crimes can be questionable.
           Gordon Tullock briefly referred to institutional reforms as one of the possible
 smooth democratization processes out of autocracy.105 He argues that when a tyranny
 thinks of retirement, most probably, the main reason that would make him abstain
101
    Schwartz, supra note 74, at 464.
102
    Choi & David, supra note 75, at 1173–4.
103
    Id. at 1173.
104
    For experimental evidence from Hungary, the Czech Republic, and Poland on the different effect of these
    three strategies on trust see Choi & David, supra note 75. However, a general theory can‘t be derived from
    such a study. Moreover, it measures only the effect on trust, while other purposes of the lustration laws are
    not discussed.
105
    See Gordon Tullock, Revolution and Its Suppression; “Popular” Uprisings, in The Selected Works of Gordon Tullock
    (Volume 8): The Social Dilemma of Autocracy, Revolution, Coup d’Etat, and War 219 (2005).


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                             THE PRICE OF TRANSITIONAL JUSTICE


 would be worrying about his safety after retirement. Consequently, a good strategy for
 him would be creating a democratic constitution and holding elections to choose a new
 government. Tullock thinks that in this case, the new government will both be grateful
 to the past tyranny and too busy sorting the new system out to harm him, which would
 be the best case for the autocrat. However, most of the examples of this approach in
 South America involved a reversal back to autocracy after a few years.106 The reason, in
 my opinion, is that the case which Tullock presented is neither a case of revolution nor
 of democratization. The reason is that there is only one way for the autocrat to be sure
 that his own autocratic government will not turn behind him and attack both him and
 the new democratic government, defending their benefits from the autocratic regime:
 namely by ensuring that the new democratic government being a new version of the
 same past officials and beneficiaries. In this case, although this approach is a safe exit for
 the autocrat and his government that could save the country lots of blood and costs, it
 does not represent any form of real institutional reform. First, the past abuses were not
 recognized, and no one asked for forgiveness or promised the non-repetition of these
 violations. Second, it is probably a mere change in the de jure without a change in the de
 facto application of constitutional democracy principles. Consequently, any thinking of
 the safe exit principle for autocrats to de-incentivize them to hold on to power should
 also include two necessary conditions: a genuine institutional reform, ridding the
 dictator of his top officials so they may not reproduce his government; and recognition
 of his violations in return to giving him, and probably his family, a blanket amnesty. This
 definition of institutional reforms entails lustration policies against the first line
 personnel, who usually include the governing party’s directory board, the cabinet, and
 heads of the leading state authorities, e.g., the parliament’s head. Although these
 persons , in addition to the autocrat, do not perform alone, and they are usually
 connected to a complex and broad net of beneficiaries and collaboratives, they are the
 most critical because they control this network.           Consequently, minimizing their
 influence could ease controlling the rest of the system.
            Upon the previous legal/economic analysis, the costs and benefits of lustration
 will depend on the adopted legal system. However, to build only a basic matrix of the
 cost-benefit analysis, I will assume that the previously indicated arguments counter the
 legal considerations and that the two broad legal guarantees required by the
 international rulings and literature are applied. Accordingly, the cost-benefit analysis
 would be as follows in table (4):



106
      Id.


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                Figure 4: Table (4) Cost-Benefit Matrix of Lustration as a T.J. Mechanism


 Note that the probability of adopting complementary mechanisms of institutional
 reforms, i.e., training, new policies guaranteeing the rule of law and I.H.R.L., and
 monitoring, is added as a prerequisite to the benefits of lustration generally. The reason
 is that other benefits, including deterrence, trust, and international standards, depend
 on them too.



      1.5. NATIONAL CONSULTATIONS

 This mechanism involves public participation in laying down the principles and
 mechanisms of transitional justice and interaction with their application.                                  This
 participation also includes the necessity of the outreach of transitional justice, its
 knowledge, details, and implementation in society.107 The mechanism then takes two
 ways: The first is integrating the public’s feedback into the T.J. mechanisms’ design, and
 the second is outreaching to the public to teach them about T.J. mechanisms.108
           It has been argued in the literature and the analysis provided above that the design
 and selection of T.J. mechanisms differ and depend on the case and the context in which
 these mechanisms are applied. The more these mechanisms are context-oriented, the
 more they are likely to succeed. National consultations are a way through which the T.J.
 policy-makers can seek a better understanding of this context.109

107
    United Nations, supra note 2, at 9.
108
    Anna Triponel & Stephen Pearson, What Do You Think Should Happen? Public Participation in Transitional Justice,
    22 Pace Int’l L. Rev. 103, 103-14 (2010).
109
    Phuong Pham & Patrick Vinck, Empirical Research and the Development and Assessment of Transitional Justice
    Mechanisms, 2 INT’L J. TRANSITIONAL JUST. 231 (2007). Triponel & Pearson, supra note 107.


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                                 THE PRICE OF TRANSITIONAL JUSTICE


 In other terms, it contributes to solving the principal-agent problem between the public
 (the principal), including the victims and the policy-makers (the agents), through two
 means. First, involving the agents in the design of the T.J. mechanisms; second, providing
 more information in the market on both sides, i.e., policy-makers could know more about
 the needs and priorities of the victims and concerns of the pro-past regime or neutral
 parties, and the victims and other involved parties could understand more about how the
 T.J. mechanisms work and at what cost. This “low information cost”-effect that national
 consultations cause also minimizes other possible problems in the market, including a gap
 between the supply and demand of T.J. mechanisms and concerns of paternalism practiced
 by the policy-makers. Moreover, the integration of the public and relevant actors in the
 negotiation phase increases the probability of their cooperation in the implementation
 phase.110
           The techniques through which national consultations are practically applied vary.
 They may include:


      1. Doing empirical research to assess the needed mechanisms and the preferences of
        the public. The effectiveness of these researches and their methods is presented in
        a study by Phuong Pham & Patrick Vinck.111 This empirical research may be
        quantitative, qualitative, or through mixed methods.112 This is a way of using the
        scientific research methods, which are distinguished by being objective, to reach
        the most possible accurate estimations of the public needs, concerns, and
        preferences. Better results could be expected when these studies are run by
        neutral scientific institutions instead of governmental bodies;


      2. In case T.J. laws are incorporated in the interim constitutions, subjecting them to
        national consultations and popular approval over the constitution as general. The
        first, in the drafting phase, happens through deliberations among the constituent
        assembly, which is either elected or formed by an elected authority, and the
        political elites generally. The public also takes part in this phase not only through
        electing their representatives but also through civil society organizations, national
        bars, media polls, and other common methods of involving society in the
        constitution-making process. The second process is usually conducted via national
        referenda;

110
    See Triponel & Pearson, supra note 108.
111
    Pham & Vinck, supra note 109.
112
    See Office of the United Nations High Commissioner for Human Rights, RULE-OF-LAW TOOLS FOR POST-CONFLICT
    STATES: NATIONAL CONSULTATIONS ON TRANSITIONAL JUSTICE (2009).


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        3. Integrating national actors, civil organizations, non-governmental authorities, and
             the other relevant actors in the discussions over the T.J. mechanisms’ design,113
             and the implementation and follow-up phases afterward. For example, in some
             cases, these entities can collect information from victims regarding their
             expectations from the reparations programs and communicate these expectations,
             victims’ numbers, and their cases’ details to the authorities handling T.J..
             Grass-root and regional organizations are specifically helpful in this regard
             because of their familiarity with some levels, regions, and contexts that the
             high-level policymakers may not be specifically familiar with. This method was
             applied recently in Tunisia,114 for instance, the only system that completed a T.J.
             process among the first-wave Arab Spring cases.

        4. Facilitating open-access national hearing sessions regarding T.J. policies, whether
             in-person or aired on TV and radio or online. In addition, the media coverage of the
             T.J. processes, and the cultural and educational activities undertaken by the state or
             the non-governmental institutions, are all forms of integrating the public into the
             process which promotes the national ownership of it.

 The two possible costs of national consultations are: First, increasing the time costs of
 the T.J. process by increasing its length, before and after its start; second, adding extra
 administrative costs to the process. Table (5) shows a matrix of the costs and benefits of
 National Consultations as a T.J. mechanism:




             Figure 5: Table (5) Cost-Benefit Matrix of National Consultations as a T.J. Mechanism
113
      Triponel & Pearson, supra note 108.
114
      E.g., The Tunisian Authority to Truth and Dignity (TDA), ������ �������� ������� ��� ���� ������ ������ �������� ������� �������� ]The
      Executive Summary of the Final Total Report of the Tunisian Authority to Truth and Dignity] 38, IVD (2019),
      http://www.ivd.tn/rapport/index.php.


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                                      THE PRICE OF TRANSITIONAL JUSTICE


          2. GENERAL REMARKS AND POLICY IMPLICATIONS

 In this section, I give some notes on the previous analysis of T.J. and its mechanisms.
 Some of these notes might be useful for the policy-makers, and others suggest research
 questions for future studies, especially empirical studies. The objective of this research
 was to use economic thinking in order to explain T.J. mechanisms as presented by the
 U.N. Guidelines in the context of revolution over autocratic regimes. A C.B.A. of each
 mechanism was provided to achieve this objective, drawn from the available literature
 and empirical findings, and following rational choice theories, especially public choice.
 Although this research represents a starting point for using C.B.A. in the field of T.J.,
 there are general remarks that still have to be taken into account when doing so both by
 researchers, practitioners, and policymakers. These remarks include the following:


         • Although the U.N. guidelines ignore amnesties as one of T.J. mechanisms and
            promote the value of accountability, the previous C.B.A. suggests a thorough
            consideration for this mechanism. Amnesties and lack of T.J. are two different
            things. When applying amnesties, the society and the government recognize that
            there were violations against the victims in the first placE, that they are not
            acceptable, and that they will not be repeated, but they will be forgiven because
            seeking “justice” for them would be too costly to the extent that it would obstacle
            achieving T.J. goals themselves. This is different froM ignoring what happened in
            the past altogether. I referred to this distinction earlier when discussing Tullock’s
            thoughts on the safe exit to autocrats.

         • Being, after all, a political arrangement, a C.B.A. of T.J. policies could change from
            one stage to another because of considerations of dynamic efficiency.115                               For
            example, in the beginning, starting prosecution initiatives to please the public and
            obtain their trust and thereby seize power may lead to over-deterrence. People
            holding public offices, whether top or less senior officials, could fear the legal
            responsibility over continuing past policies and the “fever” of chasing mistakes in
            the public sector. This fear can be fed by little knowledge of the applicable laws
            and the scope of legal liability, which finally leads to a level of activity below the
            optimal level for social welfare and levels of care far above the desired. After some
            time, however, failing to avoid or intentionally becoming stuck in the procedural
            and legal complications, which then lead to T.J. policies’ failure or their
115
      For more on dynamic efficiency vs. static efficiency, see Veljanovski, supra note 5, at 35–6 Or as Teitel puts it:
      “Law in transitional periods is both backward-looking and forward-looking, retrospective and prospective,
      continuous and discontinuous”. Teitel, supra note 6, at 215.


                                                           134
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         discontinuity, could lead to under-deterrence. Accordingly, the possibilities are
         always open, and the calculations regarding over/under deterrence are mercurial.
         Therefore, a careful trade-off between ex-ante and ex-post efficiency should be
         made when designing T.J. policies from the beginning.

      • The measurement of the given variables in the presented models of T.J.
         mechanisms should not depend only on the universal quantitative weights given
         to them but also on the national and local weights to provide the most possible
         accurate evaluation.          This local evaluation can be achieved through the
         pre-empirical studies referred to earlier. Even if some data will be challenging to
         collect, “lawmakers would do better to use imperfect empirical analysis than perfect
         non-empirical analysis.”116 Some of the main reasons why empirical analysis is not
         still commonly used in the law-making processes, especially in less developed
         systems, are first, that most legal scholars and practitioners lack the necessary
         training for empirical analysis, and second, many law thinkers tend to trust the
         doctrinal analysis more than the empirical one. This skepticism is probably back to
         the conviction that “not everything can be quantified or measured.” Although this
         might be true, still using the imperfect empirical findings to accompany, not
         replace, the pure legal classic doctrinal methods can be expected to give better
         guidance of legal design and application, especially where the momentum is
         critical and can not be reversed like in transitional policies. Finally, one can expect
         that these transitional systems would tend to lack the necessary expertise, human
         capital, and financial resources to run such analyses. International cooperation
         could help in this regard.

      • One way to overcome the possible shortcomings of the pre-application empirical
         analysis is to consider T.J. pilot projects and phased approaches to minimize the
         costs of mechanisms that contribute negatively to the anticipated goals.117

      • Although the U.N. guidelines are clear in affirming that the T.J. mechanisms should
         be victim centered,118 the previous analysis shows how in many cases this focus
         is not realistic. Other variables in the process sometimes outweigh the “victims”
         considerations, like the consolidation of the new system or the practical limitations.

      • The adherence to the international legal standards is a vital element in weighing
         the benefits of the adoption of T.J. mechanisms because: first, it endows legitimacy
116
    ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 5 (2000).
117
    See Office of the United Nations High Commissioner for Human Rights, supra note 112.
118
    See United Nations, supra note 2.


                                                     135
                                             THE PRICE OF TRANSITIONAL JUSTICE


           over the new regime by giving it credibility from both the international and
           national actors; and second, this credibility may secure the international financial
           and political support which is highly needed in the transitional phase.

        • The unconstitutionality considerations’ concern is present in all of T.J.
           mechanisms because of the retroactivity of laws ban and inequality arguments.
           However, taking into account the international rulings on this matter, some
           concerns are less worrying in the contemporary and anticipated legal and political
           scholarship than in the past.

 However, besides the already mentioned legal reasonings, one of the legal finesses that
 can be used to resolve the constitutional objections, which – up to my knowledge - was
 not mentioned in the available legal literature, is adopting T.J. mechanisms in the form
 of basic, i.e., organic, law. The basic laws – also known as fundamental or organic laws -
 are those laws that stipulate the regulation of constitutional matters, such as the rules
 governing the state authorities, elections, formation of the judiciary, . . . etc. However,
 they are not included in a constitutional document. In another phrasing, they are
 constitutional by nature but not by formality. Usually, such laws are briefly referred to
 in the constitution, and given a specific procedural framework to be issued or amended
 by the legislative. Accordingly, these laws have supremacy over other ordinary laws and
 regulations in the state, just like the constitution itself.                                                 They are considered
 complementary laws to that constitution. The only difference is that they are not a part
 of that constitutional document.119                                   In France, which has a separate written
 constitutional document, these laws are called Lois Organiques.120 In other jurisdictions,
 basic law is a term that is used alternatively to refer to the constitution, but with
 inferring the meaning that it is a temporary measure without formal enactment;
 however, it can last for a long time, like in the case of Germany. This codified or
 uncodified form of constitutions may be used for transitionary circumstances or for
 avoiding the claim of being the highest law for religious reasons.121
               In the case of adopting basic laws in the first meaning, i.e. constitutional by
 nature, legislative by formality, the reasoning of issuing and differentiating them from
 both the constitutional text and the ordinary laws could have two arguments.

119
     See Sabry El Senousy, ������� ��������� ��� ���� ������� ��������� �� ������� ���������� ������ ����� 2014 [Constitutional Law; An explanation
    for the most important general constitutional principles in the transitional phase and the provisions of the
    Constitution] 17, 17–23 (1 ed. 2014).
120
    See generally George Burdeau, Droit Constitutionnel et Institutions Politiques [Constitutional Law and
    Political Institutions] (20 ed. 1984).
121
    SeeDavid M. O‘Brien, Constitutional Law and Politics: Struggles for Power and Governmental Accountability
    (9th ed. 2014).


                                                                       136
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 First, minimizing the administrative and time costs of issuing and amending them in the
 usually relatively complicated constitutional process for their relatively flexible and/or
 urgent nature, while, second, maximizing the costs of their surpass for their vitality. In
 the case of adopting T.J. mechanisms in the form of laws, can these laws be considered as
 basic laws by nature? This can be debatable, and it is not the topic of this study to go
 through this legal debate.                In some cases, the constitution-makers can avoid any
 suspicion or debates by explicitly stating that the laws of transitional justice in a specific
 phase will be considered or regulated by a basic law. For example, one of these cases is
 the Basic Law of Transitional Justice of Tunisia.122 However, in brief, the legal opinion
 that this research adopts is: indeed , transitional justice laws are by their nature basic
 laws. The reason is that although they are genuinely relevant to criminal law because
 they regulate the penalizing and sanctioning of specific acts, they still regulate
 constitutional matters. These matters are such as: the formation of the state authorities
 during and after the transition, the limitation of the civil rights of some of its citizens,
 partial organization of the electoral rules, and most importantly, extra-ordinary judicial
 procedures that could not be valid under the “usual” constitutions. This last detail is
 utterly vital, specifically for this study, as it relates to one of the dilemmas that T.J.
 usually faces, which are constitutional challenges. These dilemmas were presented and
 analyzed through the discussion of the different mechanisms of T.J.. This formality could
 then work as a shield against any judicial challenge of the adopted T.J. mechanisms
 because the constitutions are not challenged before the supreme courts; they are the
 state’s highest laws. The effectiveness of this solution ranges though, depending on the
 relevant mechanism. For example, in the case of reparations and truth commissions,
 because they lack the punishment aspect, unconstitutionality concerns are not as strong
 as in the case of prosecutions and lustration. For example, being a member of the past
 regime’s party, or following orders that may lack moral reasoning even if they were
 legal, could not be sanctioned without retroactive laws or laws that could be struck down
 in constitutional courts based on inequality considerations between citizens.123
 Interesting enough, amnesty can be subject to the same concerns of unconstitutionality
 on the basis of the absence of due process, which happened in the Nepali or South
 African cases, for example.124

122
    See ������ ������ [The Tunisian Gazette], Organic law n° 2013-53 dated 24 December 2013, establishing and organizing the
    transitional justice (2013), http://www.legislation.tn/detailtexte/Loi-num-2013-53-du-24-12-2013-jort-2013-
    105__2013105000531.
123
    A contemporary example of this direction is the position of the Egyptian Supreme Constitutional Court
    regarding the Political Lustration Law after the 2011 revolution. For more on this position and its
    circumstances, see Khalil, supra note 31, at 212.
124
    Amanda Cats-Batil, Moving Beyond Transitions to Transformation: Interactions between Transitional Justice
    and Constitution-Building 10 I��� 19–20 (2019), https://www.idea.int/publications/catalogue/moving-beyond-
    transitions-to-transformation.
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                                     THE PRICE OF TRANSITIONAL JUSTICE


 Moreover, generating the T.J. policies in the form of a basic law guarantees that more of
 relevant actors are represented in the process of their designation because their delivery
 usually requires more sophisticated procedures and more representative authorities
 than those in the case of ordinary laws or regulations. This strategy reduces information
 asymmetry, which could lead to policies that are more likely to be self-enforcing. Finally,
 in this way, these laws can work as a pre-commitment device that includes all the
 interested parties, which could make feasible the movement forward through the
 political transformation.
            Generally, a T.J. policy that takes into account: Proportionality + Combination of
 different mechanisms + Customization of the mechanisms upon the relevant case + Basic
 laws of T.J. should have the most effective outcomes achieving the goals of T.J. with the
 least legal complications. A balance between two considerations is needed to be done,
 not only by lawmakers but also by the constitutional courts. These considerations are: 1)
 The necessity of a radical break from the authoritarian past and the consideration of the
 context in which the principles of the rule of law, democracy, and due process are applied,
 which can justify a less strict application of their measures, and 2) The rejection for giving
 up the human rights considerations at all in the first step of the democratization, which
 could have a “killer effect” on the process.125

       • The second step of the cost-benefit modeling should be comparing the mechanisms
         solely or when combined with other mechanisms. This step is, however, beyond the
         limits of this research and is left to future research. These models are only the basic
         models, and they are to be used and customized according to the different cases.

       • Different combinations can be chosen of these mechanisms, they can reinforce
         each other, and they are not mutually exclusive, but they have to conform with the
         international standards and obligations.126 These combinations depend on the
         outcomes of the cost-benefit analyses done by each case according to their inputs.

       • Achieving deterrence regarding violations that involve political crimes is tricky.
         The point is that to design efficient ex-ante laws which can prevent the repetition
         of the past-autocratic policies, the calculations of the sufficient punishment
         should include the calculations of the regime itself of how to exploit the state
125
    See Marek Safjan, Transitional Justice: The Polish Example, The Case of Lustration, EUR. J. LEGAL STUD., Feb. 2008, at
    235.E.g., Horne, supra note 42; MMark A. Drumbl, Prosecution of Genocide v. the Fair Trial Principle: Comments on
    Brown and Others v. The Government of Rwanda and the UK Secretary of State for the Home Department, 8 J. INT’L CRIM.
    JUST. 289 (2010).Kieran McEvoy, Beyond Legalism: Towards a Thicker Understanding of Transitional Justice, 34 J.
    L. & SOC’Y 411 (2007). For more on the benefits of constitutionalizing T.J. policies, see, e.g.,also Cats-Batil„
    supra note 124.
126
    United Nations, supra note 2, at 3,10.


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         resources without getting the people to the point of revolution. Moreover, the
         offenders should be comparing the gain from the violation with the cost if they are
         apprehended and punished, i.e., the probability of being sentenced is a part of the
         deterrence calculation.127 This probability in T.J.’s case is very low for a couple of
         reasons: 1) As indicated earlier, there will be a lack of evidence and other
         procedural difficulties. Consequently, a rational authoritarian regime would take
         the necessary arrangements not to be sentenced, either by destroying evidence or
         through bargaining with the new regime to reach a compromise; 2) In case that the
         regime heads‘ calculations reach the point that they think they will not be able to
         get away with what they committed, they will not be deterred, but will exploit the
         people until this point, and afterward they will usually make some improvements
         if possible, or flee the country.128

       • Despite the last point, T.J. policies’ negative effect on the probability of repetition
         of past crimes, which is the same goal of deterrence, could be explained through
         other rationales. These rationales include: 1) The institutional reforms in terms of
         changing the laws and enforcing them; 2) Institutional reforms in terms of
         lustration and vetting policies, which should eliminate a number of the leading
         past criminals; 3) The national consultations can contribute to this goal by
         spreading awareness among the people about human rights, the rule of law, and
         justice, and strengthening the civil society, which is expected to increase the costs
         of trying to repeat the past violations.

       • The combination between prosecution initiatives and/or lustration for only the
         head members of the past regime and reparations and/or truth commissions could
         be an effective strategy to avoid a counter-revolution, society polarization,
         over-deterrence, stigmatization of possibly innocents, and loss of human capital
         and qualities. At the same time, it achieves the accountability and prevention of
         the top criminals from continuing their criminal activities. In other words, giving
         the heads of the past-regime amnesties could be dangerous, unlike the inferior
         personnel who worked for them. This policy can be justified through the same
         economic rationality used by Richard A. Posner in explaining the economic reason
         behind the Multiple Offender Laws.129 The first part of the justification is that the
127
    Posner, supra note 29, at 18.
128
    For more on the dictator choices regarding succession and retirement, see also Tullock, supra note 105; see,
    e.g., Gordon Tullock, The Goals and Organizational Forms of Autocracies; the Problem of Succession, in The Selected
    Works of Gordon Tullock (Volume 8): The Social Dilemma of Autocracy, Revolution, Coup d’Etat, and War 82
    (Charles K. Rowley ed., 2005).
129
    Posner, supra note 29.


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           leading criminals who put the policies, commanded, and directed the ordinated
           officials to apply them, showed a higher propensity to commit similar crimes in
           the future. The second is that the sanction value should be raised on people who,
           through their past, had shown that the return of the crime is higher for them than
           for other possible criminals. Accordingly, this variation in justice mechanisms
           should achieve a higher probability of preventing crimes and deterrence. Further
           systematic empirical research is needed to measure the effects of the different
           combinations of T.J. mechanisms


         • This strategy, however, has a low probability of success in the case of mechanisms
           against the army and the police as a part of what is called in the T.J. literature as
           “Security Sector Reform [hereinafter S.S.R.]. While most of the pro-past-regime
           persons can find a place for themselves in the new regime and obey the new
           system of democracy and the rule of law, the police, the persons who used to
           protect the past regime and get the highest rewards in the society to do so, may
           find more difficulty in getting integrated into the new system. The reason is that
           any change in the regime incurs a loss for them; they will be deprived of the extra-
           payoffs they used to gain under the old regime. At the same time, if all or most of
           them were vetted or prisoned for a while, this will be like forming an army against
           the state, a trained army that lacks any incentive to work for the new regime, and
           many incentives to destroy it. The S.S.R. as a part of T.J. is already under-studied.
           The available studies on S.S.R. focus on establishing the connection between it and
           T.J. at all, reasoning S.S.R., its limits and challenges, and exploring some of the case
           studies that witnessed its application.130 However, up to my knowledge, none of
           these studies analyzed this specific concern of S.S.R..               This concern forms a
           dilemma. A solution, however, might be replacing the leading staff of the police
           and the army with influential leaders who are pro the new regime. It could be
           successful if the big heads are pro the new regime and can strictly monitor these
           troops.    The empirical analysis will be needed to test such a suggestion and

130
      E.g., Eirin Mobekk Geneva , Geneva Centre for the Democratic Control of Armed Forces             (DCAF)
      Transitional Justice and Security Sector Reform:          Enabling Sustainable Peace, DCAF       (2006),
      https://www.dcaf.ch/sites/default/files/publications/documents/OP13_Mobekk.pdf;                     Ana
      Cutter Patel, Transitional Justice, DDR and Security Sector Reform, Research Brief               (2010),
      https://www.ictj.org/sites/default/files/ICTJ-DDR-S.S.R.-ResearchBrief-2010-English.pdf;
      Christopher Gitari Ndungú, Failure to Reform; A Critique of Police Vetting in Kenya, ictj        (2017),
      https://www.ictj.org/sites/default/files/ICTJ-Briefing-Kenya-PoliceVetting-2017.pdf;              Laura
      Davis, Transitional Justice and Security System Reform, Initiative for Peace Building            (2009),
      http://www.peacewomen.org/sites/default/files/recon_transjusticessr_ictj_2009_0.pdf;              Sumit
      Bisraya & Sujit Choudhry, Security Sector Reform in Constitutional Transitions, ICTJ             (2020),
      https://www.idea.int/publications/catalogue/security-sector-reform-constitutional-transitions.


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           investigate whether this concern was existent in any of the cases that applied
           S.S.R. and the impact of the different strategies – if any – to deviate.

         • Each of the C.B.A. presented in this article assumed that the relevant mechanism
           would be applied for a specific period; i.e., it is not open-ended. However, that
           analysis would change if this time cap is lifted. For example, one could expect that
           the administrative and time costs would be multiplied in this case. This argument
           is not a suggestion of time-limiting T.J.’s application, and despite that, any typical
           reasoning of the legal principle of lapse by prescription could be presented here; it
           can be faced by a counter-analysis of the exceptional nature of the subject of the
           violation of T.J.. The point is: To decide what the time cap of a relevant T.J.
           mechanism should be if there should be any, the following will be needed:


       (a) an empirical assessment of the legal complications and multi-aspect practical
           consequences of applying the open-ended T.J. mechanisms compared to the
           time-limited ones.131

           updated C.B.A. analysis that adds the aspect of the time limitations to the assessment
           of the costs and benefits of the relevant mechanism to be compared to the time-
           capped original C.B.A. .

       (b) considering the possibility of innovative ways to apply the classical forms of T.J.
           mechanisms that could minimize the costs and maximize the benefits of lifting the
           time limits when applied to them. Also, considering that not all the mechanisms –
           and sub-mechanisms - will respond equally to the variable of “time-cap.”
           Consequently, a comparison between the updated C.B.A. should be kept in mind.

       (c) despite the last point, attention should be given to the fact that lifting the time limits
           has an effect that will apply to all of the cases and all of the mechanisms. This effect
           will open the negotiation over the truths, information, and amnesties with the past-
           regime member endlessly. The possible costs of negotiation, both legal and illegal
           negotiation, will always be present.


         • Although I am not conducting a quantitative analysis using the presented models
           of the cost-benefit analysis of T.J. mechanisms here, I think that such an analysis
           would be interesting to conduct or read in the future.
131
      See for example some of the notes on the German case of the open-ended application of some of the T.J.
      mechanisms provided by Thomas Weber, Time Appears to Have Run Out on the Last Nazi War Crimes Trials. But
      There Are Other Roads to Justice, Time (Apr. 3, 2019), https://time.com/5563615/nazi-trials-over/ .


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                            THE PRICE OF TRANSITIONAL JUSTICE


     CONCLUSION

Systems need a radical break between the past iteration and its new form , a process which
aims to internalize the past harm and promote respect of democracy and human rights to
achieve their transformation from autocracy to democracy. One of the tools to achieve this
transformation is Transitional Justice, which is done by adopting different mechanisms.
        Each of the mechanisms provided by international law has its challenges, costs,
and benefits.    The decision to adopt one or more of these mechanisms should be
informed by a careful analysis of each mechanism’s costs and benefits and each possible
combination. This article outlined a theoretical cost-benefit analysis derived from the
literature on the Transitional Justice of case studies, reports, empirical studies, laws,
rulings, and theoretical analyses. However, the weights given to these inputs will vary
from one case to another, and that is how the output will vary as well. Consequently, an
effective mechanism for one case may be ineffective to another, depending on many
other possible variables. This process is costly and complex due to the nature of factors
considered and the different – and even opposing - stakeholders involved. However,
deliberative and multilateral solutions, including democracy, are always more costly in
the short-term than authoritative and mono-designed and controlled processes.
Arbitrary plans are also expected to be less costly in the short term than informed
study-based plans and decisions.           However, the deliberative, multilateral, and
study-based decisions are expected to be less costly in the long run, especially in a
critical and broad project like T.J. after a revolution.
        On another note, by their nature, from a constitutional legal perspective,
transitional justice laws are basic organic laws. In case their formality is aligned with this
nature, this may solve some of the legal complications T.J. faces. Future empirical
research can tell us more about the effectiveness of this solution and compare the
efficiency of the different T.J. mechanisms and their combinations.




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