Center for the Study of Democracy

We discuss the relationship between principles of rule of law, such as due process, and transitional justice, especially truth revelation procedures. We argue that the traditional understanding of rule of law is ill-suited for evaluating lustration laws and truth commissions, and that the levels of false conviction and false acquittal are more adequate normative criteria. We distinguish between two types of truth revelation procedures: ITRs induce perpetrators and secret agents of the authoritarian regime to reveal the truth about their past while ETRs rely exclusively on preserved evidence and victims’ testimonies, without requiring any activity from the defendant. We demonstrate with a decision-making model that while both procedures are sensitive to the problem of falsified evidence, an ITR performs better with respect to revealing the identity of collaborators whose files were destroyed. Finally, we explain the connection between ITRs and endogenous transitional justice making an argument for the latter over exogenous modes of coming to terms with the past.