Introduction
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International Human Rights Day, December 10, will forever carry a peculiar charge for many observers of Latin American affairs, since it now marks the anniversary of the 2006 death of former Chilean military strongman Augusto Pinochet. Although never formally convicted of a crime, the archetypal and once all-­ powerful Latin American dictator died while under investigation for dozens of counts of murder, torture, tax fraud, and corruption. In neighboring Argentina, former junta leaders were meanwhile under house arrest for kidnapping and forcible adoption of the children of the “disappeared.” Fifteen hundred miles to the north in Lima, Peru, lawyers were busy seeking the extradition of disgraced autocrat Alberto Fujimori, finally handed over by Chile to become the first former head of state ever extradited to stand trial at home for human rights crimes. I­ n Uruguay, first steps were being taken toward the imprisonment of half a dozen military officers for similar offenses. The country ’s two living former presidents were already in jail. In each of these countries , dozens of high-­ level former regime agents were worriedly revising their foreign travel arrangements and calling their lawyers. The trend toward calling former torturers to account now seems unstoppable, and yet it represents a major turnaround for a continent that for most of the 1980s and 1990s had been a byword for impunity. Why this seismic shift? Are these changes being willed by the societies themselves, or are they, as some claim, the result of meddling by former colonial powers? Are the new trials a symptom of crisis or a sign of the robust good health of Latin America’s fledgling democracies? Overview of the Argument This book is among the first serious efforts to account for the recent­ “re-­ irruption” of attempted prosecutions over past human rights violations in Latin America. It suggests that the classic transitional justice school of thought Introduction 2   post-transitional justice is no longer adequate for understanding the resurgence of justice claims in post-­ transitional societies. The book proposes a new, “post-­ transitional justice ” framework for describing and understanding post-­ transitional accountability trajectories. This framework is then applied to justice politics and the fate of emblematic legal cases in post-­ transitional Chile and El Salvador. These in-­ depth studies help to establish why and under what conditions transitional impunity outcomes can be expected to break down. They also show what particular combination of actors, strategies, and judicial-­ institutional arrangements seem to favor or inhibit post-­ transitional justice. In particular, the book tests the supposed demonstration or domino effects produced by transnational networks, whereby prosecutions in third countries—such as the frustrated 1998 attempt to extradite former Chilean dictator Augusto Pinochet to stand trial in Spain—are believed to spur domestic judicial activity. The central question addressed by the book is: “what happens to human rights accountability after transition?” and, in particular, “what are the conditions under which transitional human rights settlements are likely to change?” A subsidiary question is how, how much, and how successfully national groups, norms, and initiatives have interacted with international ones in recent attempts to bring about this kind of change. Based on the experiences of Chile, which has recently seen substantial accountability change, and El Salvador, which has not, the book argues that recent developments need to be distinguished from earlier, state-­ level efforts to resolve outstanding justice dilemmas. This early transitional justice thinking and practice foregrounded the role of state-­ led truth-­ telling exercises and amnesties in resolving the “human rights question” in democratic transitions. Justice in the form of trials was generally considered unlikely or unwise, for a whole host of theoretical as well as practical reasons. In the words of one longtime human rights professional, “They told us the options were democracy or justice because we couldn’t have both.”1 This book analyzes how these early constraints on justice shift over time, responding to national political trends as well as changes in international law and the end of cold war geopolitics. It proposes the new conceptual framework of “post-­ transitional justice” for understanding contemporary domestic justice outcomes. This framework focuses specifically on the continued pur1 . Argentine lawyer Juan Méndez speaking at the 2008 “Pinochet Effect” conference in Santiago , Chile, quoted in Brett (2009). Many of the classic texts expounding this view are collected in Kritz (1995). introduction     3 suit of justice for past human rights violations via legal systems—henceforth termed “judicial accountability” or simply “accountability.” It asks who, if anyone, acts in favor of...