The Time and Space of Transitional Justice

Abstract

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 to consolidate the new democratic order. Grounded in a merger of human rights advocacy and the ‘transition to democracy’ literature of the 1980s and 1990s, transitional justice scholars 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. Since then, transitional justice scholarship has developed enormously. For example, contemporary studies of transitional justice 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 and the State has come to be seen as only one among several relevant actors relevant for promoting and implementing transitional justice tools. This paper argues that 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 for the understanding of what transitional justice is and what it can achieve, which have not been sufficiently explored in the scholarship. First, the paper discusses the implications of transitional justice no longer necessarily being confined to a limited ‘window of opportunity’ in time. Second, the paper discusses the ramifications of transitional justice no longer being reserved for periods of liberalizing political transition. Finally, the paper examines the consequences of transitional justice occurring at other levels than the State level.

Keywords: Domestic prosecution of international crimes, Kenya, complementarity