Retrospective Justice and Legal Culture

by Raluca Grosescu and Agata Fijalkowski

Chapter in Lavinia Stan, Lucian Turcescu (eds.), Justice, Memory and Redress: New Insights from Romania (Cambridge: Cambridge Scholars, 2017), pp. 100-123.

This chapter explores the relationship between legal culture and retrospective justice in transition, in post-1989 Bulgaria, Germany and Romania. It analyses the different legal narratives that framed trials regarding state crimes committed under communist rule. It specifically focuses on those cases where the application of retroactive law was necessary in order to prosecute, namely: the Bulgarian Lovech camp trial; the German Border Guards’ trials; and the Romanian cases concerning political crimes committed in the 1950s. Most of the scholarship on post-communist transitional justice has emphasised the nature of the communist regime, the exit from dictatorship, or the party struggle for political power during transition as the main determinants that influenced judicial accountability after 1989. We argue that the legal culture, in particular, the judiciary’s understanding of legal formalism and international human rights law, is another important determinant, generally overlooked by the literature.  The chapter first considers the evolution of legal ideology since World War II in Romania, Bulgaria, and Germany. It then analyses the legal debates on the application of retrospective accountability after 1989. It concludes that the different approaches to retrospective justice were strongly influenced by the dominant culture of legal experts.

International Conference: State Socialism, Legal Experts and the Genesis of International Criminal and Humanitarian Law after 1945

conference_berlin_nov_2016_legal_expertsIn the history of international law, the socialist bloc has been generally relegated to the role of roadblock in fulfilling the ideals of Western liberalism. This conference seeks to question established narratives that have ignored or downplayed the role of state-socialist governments and legal experts in shaping the evolution of international criminal and humanitarian law after the end of the Second World War. With a geographic scope covering the Soviet Union, the Eastern Bloc, Africa, and China, the conference explores the socialist world’s doctrines and international engagements concerning the codification of different international crimes [including crimes against peace, the crimes of aggression, Apartheid, terrorism, slavery, narcotics trafficking and more], approaches to humanitarian intervention, and the relationship between state sovereignty and international law. The conference advances the idea that rather than simply block progress, socialist initiatives played a vital role in the production of norms and ideas that continue to be relevant for the current international criminal and humanitarian legal system.

See the brochure of the conference here.

Socialist Legal Experts and the Non-Applicability of Statutory Limitations to International Crimes

by Raluca Grosescu

at New Europe College, Bucharest, 12 October, 2016.

raluca_grosescu_nec_seminar

The presentation analysed the contribution of state-socialist governments and legal experts to the development of a major principle of international criminal law, namely the non-applicability of statutory limitations to war crimes, genocide, and crimes against humanity. On the one hand, it examines the transnational mobilization of socialist legal scholars and political elites – their cooperation with Western scholars and “third world” governments – with a view to bringing on the agenda of the international community and enabling the adoption of the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. On the other hand, the presentation dealt with the negotiation of the 1968 UN Convention in historical context, with a special focus on its legal innovations and shortcomings, as well as its subsequent impact on the advance of prosecutions of dictatorial crimes in post-communist Eastern Europe (Estonia and Romania) or post-dictatorial Latin America (Argentina and Chile). I argued that state socialist elites played a major role in establishing the non-applicability of statutory limitations to international crimes as a principle of international law. Though intertwined with political agendas and not without flaws, these efforts contributed to the progress of both customary and conventional international criminal law.