Between 2015 and 2023 the Law and Justice government significantly altered the composition of the Polish Constitutional Court, the Supreme Court and the National Council of Judiciary. It has also expanded the power of the executive branch in relation to the courts. This process – which the majority of scholars and legal practitioners saw as a period of deterioration of the rule of law – also had a transitional justice dimension. In this chapter, I claim that the decline of Polish liberal constitutionalism was possible because the Law and Justice party managed to create an alternative constitutional vision – a counter-constitution, to borrow the term from Kim Lane Scheppele – the cornerstone of which was the belief in ‘legal impossibilism’. ‘Legal impossiblism’ was often understood to refer to strict constitutional constraints supposedly preventing the parliamentary majority from introducing crucial reforms. The analysis of the Polish constitutional framework demonstrates that, in the transitional justice domain, ‘legal impossibilism’ perceived this way is a myth. However, I argue that the previous government perceived ‘legal impossibilism’ differently: as restraints upon a radical shake-up in political, social and economic hierarchies. For the Law and Justice party, without such a change the democratic transformation remained incomplete.

Emperors issued amnesties to address extensive and excessive punishments, pardon convicted imperial relatives and confidants, and forgive participants in rebellion. Several emperors realized that the legal system victimized a large portion of the population, including good people. Instead of implementing thorough reforms to the legal system, the emperors generally relied on temporary amnesties as a solution to the widespread criminalization of commoners. While amnesties allowed the population to tolerate the legal system, they directly distorted the concept of justice. The emperor forgave criminals but did not forget their crimes. Officials who implemented the law were blamed for causing chaos and suffering, while the emperor presented himself as a savior. Men, upon being convicted, lost their independence, dignity, and autonomy before the law. However, after being pardoned, they owed their lives and deaths to the throne.

If rights are at stake in the health of the body, it is now increasingly second nature to think they are in the aftermath of violence conflict or immense wrongdoing. Memory of violence is one way rights politics have been made meaningful. Bonny Ibhawoh observes that memory – including a right to memory – has been a focal point of rights mobilizations around the world. At the same time as recasting collective understanding of the past is itself an object of contemporary politics, competition over memory – including who is entitled to narrative privileging and why – has followed suit.

As Kamari Maxine Clarke likewise explores in her chapter, the intersection of rights and “transitional justice” in diverse situations has become one of the defining features of our time. Narrating the classic role of the South African Truth and Reconciliation Commission after the end of Apartheid, Clarke dramatizes the struggle over the meaning of transition, distinguishing between the “moralistic” goal of forgiveness and the more confrontational demand for accountability. For Clarke, the performativity of justice – it is always rendered by someone – means the history of human rights needs to be equally attentive to when it is not provided or when crimes are perpetrated or mistakes made in its name. What we see is that particular transitional justice speech acts enable the reproduction of particular types of power.

We explore how societies that have endured severe human rights violations confront and address their past and examine international mechanisms designed to protect human rights. This chapter asks: How can a society be rebuilt and made functional in the aftermath of human rights abuses? How can a culture of human rights be fostered? Should the pursuit of justice for perpetrators take precedence, or should reconciliation and forgiveness be the primary focus? We delve into the concept of transitional justice, its meaning, the key challenges to its implementation, and the effectiveness of various mechanisms in restoring justice and peace.

This concluding chapter reflects on the relationship between transitional justice, power, and law at the current global conjuncture of the alleged end or “eclipse” of liberal democracy and human rights and the rise of rightwing authoritarian populism and fascism. It recapitulates the major interventions of the book that critically interrogate the binary of liberalism and authoritarianism and the abstract idealization of the virtues of transparency and the right to know in dominant transitional justice and human rights politics. The chapter organizes the concluding reflections under five headings that draw attention to the making of rightwing authoritarian populist legalism and transitional justice; the problem of Eurocentrism; capitalist and nation-state-centric politics of transitional justice; and reflections on the alternative notions of truth and political responsibility that the book has developed as part of its attempt to envision socially transformative justice beyond moral autopsy and heated political struggles.

The chapter examines the relatively underexplored relations of property, sovereignty, and security underlying transitional justice by focusing on the national and “European” legal space of Polish lustration and postsocialist Eastern European transitional justice more generally from a critical legal and social-materialist perspective. The chapter offers an analysis of the key European resolutions, the rulings of the European Court of Human Rights, the legal doctrine of “militant democracy,” and the landmark verdicts of Poland’s Constitutional Tribunal concerning lustration. In particular, this analysis critically interrogates the public–private distribution of responsibility, the problem of corporate sovereignty and immunity, and the authoritarian logic of security underpinning neoliberal and liberal capitalist citizenship. While highlighting the importance of the interdependence of legal rights and struggles, the chapter urges us to go beyond the binary of liberalism and authoritarianism and attend to the ways in which rightwing authoritarian populism grows out of liberal legal and capitalist institutions and frameworks.

The chapter probes the relationship between law and performance in the context of transitional justice. By analyzing cultural productions and public performances such as films and theater plays, the chapter examines the ways in which lustration has become dramatized through the themes of secrecy, deception, betrayal, and the desire to know and not to know. While these cultural practices offer insight into the public intimate life of lustration, they also show how they become a site and form of social opposition and critical engagement with the terms of lustration and moral autopsy. In particular, the chapter offers a detailed ethnographic study of the experimental theater play by Wojtek Ziemilski, Small Narration (Mala Narracja), which highlights the layered relationship between theater and law and shows the extent to which the judicial and moralized forms of examination and judgment might travel and be contested by alternative forms of knowing, not-knowing, and relating to life, history, and politics.

The chapter concerns the relatively underexplored relationship between transitional justice, media, and rightwing populism. In particular, the chapter problematizes the boundaries of official Polish lustration and attends to the ways in which lustration has become a site for the counter-hegemonic struggles of rightwing groups against postsocialist liberal establishment. Through a detailed analysis of informal lustration practices such as highly mediatized “agent lists,” ad hoc commissions, and the historical research about the famous worker dissident and later the president of the Polish Republic, Lech Walesa, the chapter shows the ways in which liberal and conservative nationalist groups mobilize legal rights against each other, especially freedom of speech and freedom of academic research and the right to a good name/reputation, in an environment pervaded by sensational modes of publicity and nationalization and privatization of public life, partly driven by postsocialist capitalist transformation of media and communication practices.

The chapter offers a critical social-historical and theoretical framework to analyze transitional justice politics in Eastern Europe, particularly Polish lustration, in the global post-Cold War moment marked by the proclamations of the “end of history” and ideology, the “moral turn,” the memory boom, the rise of human rights and rule-of-law imaginaries, neoliberal globalization, and their crises and alleged ends today. The chapter unpacks the concept of moral autopsy, which underpins transitional justice efforts such as lustration and reconstructs communism as a dead and ruinous past and criminality, the truth of which it seeks to trace and dissect in the persons associated with communism, especially communist secret service. The chapter focuses on the themes of truth-telling, deception, and treason articulated by moral autopsy and Polish lustration, and places them in the context of postsocialist contradictions of liberal legal and capitalist transformations. The chapter discusses the key methodological orientations of the book, particularly the conditions of ethnographic research on lustration, marked by pervasive suspicion of betrayal and moralization of politics and history.

The chapter addresses the problem of the nation-state centrism of transitional justice through an ethnographic analysis of the self-lustration trial of a Polish academic historian, who was revealed as a secret communist agent by a powerful rightwing politician in the local media. The chapter studies closely the evidentiary process, court testimonies, and courtroom performances to show how law mediates and reproduces the relations of domination and inequality, as it becomes an arena for critical engagement with and even deconstruction of the terms of lustration by revealing, even if sporadically, the largely overshadowed histories of friendship and solidarity. In particular, the chapter highlights that lustration’s nation-state centrism, which manifests itself in its extensive dependence on state security archives and the court’s reliance on the testimonies of former security officers, poses crucial challenges for the court in ascertaining ambiguities and settling suspicions, and thereby gives ample room for the political instrumentalization of law, especially by rightwing groups.

Chapter 1 presents the main argument of Escaping Justice. Accounting for the demand for norm compliance and the domestic risks inherent in norm adoption, this chapter elaborates the ways in which governments strategically adapt transitional justice to advance state impunity. In making this argument I identify a growing global norm of accountability for human rights violations putting pressure on governments to hold perpetrators of wrongdoings to account. Adhering to international norms can carry domestic risks, particularly in cases where governments are culpable for wrongdoings. In responding to the risks of accountability, governments strategically adapt transitional justice to comply with international norms. I identify three strategies that governments use to advance impunity while seemingly complying with international norms, namely coercion, containment, and concession. These strategies are selected based on a government’s ability to control its norm response. The chapter closes with a discussion of the research methodology of the book and ethical considerations.

Post-genocide Rwanda serves as a case of strong institutional control in which the government engages transitional justice through a strategy of coercion. In this chapter I explore the Rwandan government’s response to international pressure for accountability. To advance government impunity, the government adopts a strategy of coercion, wherein a new transitional justice institution, gacaca, is implemented but subsequently monitored and controlled to advance state impunity and consolidate RPF control. The chapter begins with an overview of armed conflict in Rwanda with particular attention on the complexities of the violence experienced by individuals during the civil war, genocide, and at the hands of the RPF. I then discuss the government’s strategic adaptation of transitional justice to identify and evaluate the coercive strategy in which claims for government accountability are monitored and controlled. I explore the strategy of coercion in practice through an in-depth analysis of gacaca, which has aggressively pursued crimes of genocide while ignoring RPF abuses. To explore the coercion strategy beyond the case of Rwanda, I examine transitional justice in Burundi.

Northern Ireland typifies a highly constrained government. In this case, institutional constraints on the British government lead to a strategy of concession in which transition justice is offered to appease the demands of strong domestic constituencies without a genuine attempt to reckon with past wrongdoings by the British state. By engaging transitional justice for some emblematic cases and not others, the government further propagates the sectarian divisions that legitimate British control. The chapter begins with a discussion of the conflict in Northern Ireland and outlines the wrongdoings committed by the British state. I then evaluate the concessionary strategy that accommodates only certain demands for state accountability. Next is an evaluation of that strategy in practice through a focus on public inquiries and the Historical Enquiries Team. These mechanisms showcase the way certain events and experiences have been thoroughly investigated and adjudicated while other incidents have been obstructed or ignored. To explore the strategy beyond Northern Ireland, I examine transitional justice in the Central African Republic.