Post-transitional Justice: Human Rights Trials in Chile and El Salvador

2. Post-Transitional Justice

The resurgence of attempted claim-making over past HRVs in the late 1990s calls into question some of the central tenets of the transitional justice school, in particular the expectation of definitive closure of the accountability question by amnesty. Events, as much as theory, suggest the need for a new conceptual approach if recent developments in the region are to be adequately understood. The accountability impulse has proved remarkably resilient, resurfacing in different forms and with new agents after its arguably premature foreclosure in many initial transitional experiences. This chapter therefore sets out the possible components of what is termed here “post-transitional justice,” contrasting it with the transitional justice school examined in the previous chapter. It is proposed here that it is now both necessary and useful to think and theorize in terms of “post-transitional justice,” involving the subsequent revisiting of transition-era human rights settlements. Under this model, the persistence of the justice question into the post-transitional period, or periodic “re-irruptions”1 of it in the form of renewed accountability pressure, can be viewed as positive signs of democratic institutional health rather than as crises or breakdowns of transition. It is not only conceivable but logical to expect that private actors and even future democratic governments might pursue accountability more vigorously than transitional administrations.2 As noted above, accountability through prosecutions is the transitional justice measure least often applied by the state at the point of transition. This means that 1. See Wilde (1999), and below. 2. Although in practice private actions have been in the majority. Political will has proved scarce, with the notable exception of Argentina from 2003. See below. 2 post-transitional justice 22 post-transitional justice post-transitional challenges to earlier settlements, where they arise, generally focus on accountability as the least complete and therefore most contested element of the truth, justice, and reconciliation triad. Where initial state decisions have included the closing off of future justice claims by amnesty, however, future reversal of an initial anti-prosecution policy is made extremely difficult (see below). The nature and status of transitional amnesty provisions therefore become central to contestation over justice in the post-transitional period. Characteristics of Post-transitional Justice Post-transitional justice activity, in the form of continued or renewed contestation over accountability for past HRVs, can be observed in a number of present-day post-transitional settings in Latin America. Six characteristics of post-transitional justice distinguish it clearly from the transitional justice school of thought and practice analyzed in the preceding chapter. First, where transitional justice is centrally concerned with attaining and preserving the minimum institutional requirements of formal democracy, post-transitional justice focuses on subsequent questions of the quality, reach, and perfectibility of that democracy. Second, post-transitional justice accordingly questions the comprehensiveness and sufficiency of initial transitional justice compromises, particularly the renunciation of prosecution over HRVs. Third, since most subsequent administrations have regarded official renunciations of prosecution as irrevocable, post-transitional justice has been largely non-state, driven by private actors operating both “above” and “below” the state. Fourth, when contrasted with state-driven transitional policymaking, post-transitional justice is notably multi-sited, multi-actor, and multi-referential. A multiplicity of forms and sites can be used, depending on such factors as actor expertise, goals, resource access, and perceptions of likely success. Fifth, this multiplication of potential forms, sites, and actors means that post-transitional justice initiatives come to be adopted in pursuit of a wide variety of possibly divergent aims. Sixth: post-transitional justice activity is empirically more likely than transitional justice policymaking to have an “internationalized” character, encompassing norms and sites of contestation beyond the domestic sphere.3 3. Prior to 1996, transitional justice settlements virtually never incorporated restrictions proceeding from international norms, activism, or intervention. Teitel (2003, 88) nonetheless describes a late twentieth-century trend toward both “privatization” and “globalization” as the justice question was revisited. post-transitional justice 23 What Has Changed? The Relationship Between Transitional and Post-transitional Justice Models The transitional justice school clearly set out the exceptional context and corresponding limitations on what could be done about accountability in early periods. What it failed to address was the question of for how long those special conditions could be expected to obtain. In practice, most post-transitional periods saw substantial change to many of the objective conditions that had previously been considered to make accountability impossible or unwise...