The Time and Space of Transitional Justice
18 Pages Posted: 4 Nov 2015 Last revised: 16 Aug 2017
Date Written: November 3, 2015
The field of transitional justice emerged in the context of the so-called third wave of democratization, proposing to offer insight to the question of how the new democracies of Latin America and East and Central Europe should address serious human rights abuses committed under previous authoritarian or totalitarian regimes. The early transitional justice scholarship was premised on the notion that a window of opportunity was created by the transition itself, allowing the nascent democracies to devise justice tools in order to remedy victims and equally important to consolidate the new democratic order.
At the same time, transitional justice scholars tended to accept that the selfsame justice processes could jeopardize democratization if they failed to operate on the conditions set by the political transition. Grounded in a merger of human rights advocacy and the ‘transition to democracy’ literature of the 1980s and 1990s, transitional justice scholars thus focused on how newly established democratic governments could use the ‘transitional moment’ to respond to the abuses committed by their repressive predecessors.
In so doing, it was assumed that the transition – seen as a confined moment in time – presented both opportunities and limitations to the kind of justice that could be rendered. Accordingly, transitional justice was typically seen as something distinct to justice in ‘ordinary times’ in that the preferred transitional justice option is one which facilitates liberal transformation, while at the same time compromises to rule of law standards in ordinary times were acceptable due to the unique circumstances in which transitional justice operates. Often framed as a question of peace versus justice, these discussions tended to center around the question of whether the State should utilize criminal justice processes or other measures such as truth commissions and reparations when dealing with past abuses.
Since then, transitional justice scholarship has developed enormously. Not only do contemporary studies of transitional justice claim that transitional justice can contribute to a range of other goals, such as peace building, but they also interrogate justice processes aimed at addressing human rights abuses and more broadly the roots of conflict in a myriad of situations not characterized by a liberalizing political transition. For example, transitional justice now claims to apply to contexts where abuses are ongoing due to the continued existence of violent conflict and/ or a repressive government; situations where large-scale abuses have ended, but there has been no (clear) political transition or that transition is not liberal; and even to situations where consolidated democracies attend to past unjust practices, for example against indigenous populations. Transitional justice therefore appears to have lost its connection to ‘an exclusive “moment” in time’, raising questions as to when a transition commences and ends and what kind of transformation the justice tools aim at achieving.
At the same time, the State has come to be seen as only one among several relevant actors relevant for promoting transitional justice and transitional justice occurs at a variety of spaces other than the State-level. Accepting that local communities, civil society and regional and international organizations play important roles in advancing the objectives of transitional justice, the contemporary scholarship explores how these actors can create and implement transitional justice in contexts where the national political leadership is incapable or unwilling to do so.
Further, there is a lack of clarity as to how transitional justice should respond to the changing nature of conflict and various types of abuses, including inter-ethnic violence, cross-border conflict, systematic repression of minorities and injustices committed by established democracies. The move away from viewing transitional justice primarily as the responses of a new democratic regime to abuses committed by a past undemocratic and repressive regime raises profound questions which have not been sufficiently explored in the scholarship. Positing that we cannot speak of transitional justice in a static and uniform sense, this Chapter discusses these developments and their ramifications.
Keywords: Transitional justice theory, time and space of transitional justice
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