1. Transitional Justice: Why We Need a New Framework
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This book argues that an analytical framework of “post-­ transitional justice,” outlined in the following chapter, better explains the presence, absence, persistence , or renewal of accountability claims in post-­ transitional societies than does the preceding “transitional justice” school of thought. To explain why a new approach is needed, and to examine the roots of judicialized post-­ transitional claim-­ making in transitional justice settlements, this chapter discusses scholarship and practice surrounding early (1980s to mid-­ 1990s) Latin American political transitions. The general theoretical debates are illustrated with reference to specific Latin American country settings (see Appendix A).1 The aim is to identify the common elements of transitional justice thinking and practice that emerged from early experiences. As will be seen, the combination of some form of truth-­ telling mechanism with the abandonment or severe limitation of the pursuit of justice through the courts came to constitute a transitional “blueprint” applied extensively in Latin America and beyond. The term “transitional justice” is used to refer to and analyze how societies undergoing political change address the issue of human rights violations2 (henceforth HRVs) committed by former regimes. Works by Kritz (1995), 1. Principally Argentina, Chile, Uruguay, El Salvador, and Guatemala. Peru and Paraguay are also included in table 1, for comparative purposes. Transitional justice in Chile and in El Salvador is also discussed in more detail in chapters 4 and 6, respectively. 2. The term “human rights violation” is chosen over a host of less specific alternatives found in the literature, such as “past wrongs,” “atrocities,” or “evil.” The issue of which past acts a democratizing regime should take action over is itself a complex one. Adopting the term human rights violation(s) implies a focus on acts carried out by state agents, even though truth-­ telling measures, in particular, often also consider political violence by non-­ state forces. Although in some sense a limitation, this choice follows prevailing usage in international human rights law: while insurgent forces may be held accountable to international humanitarian law, only nation-­ states in the strict sense contract human rights obligations. 1 transitional justice: why we need a new framework 8   post-transitional justice McAdams (1997), Roht-­ Arriaza (1995), Teitel (2000), and de Brito, González-­ Enríquez, and Aguilar (2001) were among the first major contributions to what is now a substantial scholarly canon, reflecting the wide range of historical , geographical, and political contexts in which the question of “reckoning with past wrongs” has arisen. Méndez (1997) suggests that new democracies are both impelled and invited to draw a thick line under the past to throw into relief their own credentials as radical departures from that past. When an authoritarian regime is replaced in a democratizing transition,3 the new government is faced with deciding what to do with, for, and about perpetrators and victims/survivors4 of HRVs committed by that regime. The options pursued depend substantially on the room for maneuver the new government enjoys over former holders of power, as well as the level of demands from survivors and society at large for punitive action over HRVs.5 Since a major preoccupation of new authorities is to establish effective control over the state apparatus, a certain amount of concession and compromise toward still-­ powerful elites and institutions associated with the repressive period has generally been considered necessary, and has in turn restricted the pursuit of punitive sanctions against them.6 Thus state-­ level transitional justice policy is overdetermined by what de Brito terms “the stability v. justice dilemma” (2001, 345). This means whether and how much new governments consider justice measures to be compatible with goals such as securing the irreversibility of democratic change, (re) constructing democratic institutions, or asserting civilian control over the military. Possible responses range from doing nothing, to pursuing a “maximalist ” policy of identifying individual perpetrators and applying punitive criminal sanctions to them. In practice, many or most incoming democratic governments have pursued a middle ground, mixing and matching possible 3. The Latin American cases dealt with here all follow this pattern, with “authoritarian regime” used for both overt military dictatorships and the civilian-­ façade regimes that ruled the Southern Cone and Central America for much of the 1970s and 1980s. Significant differences of course exist between and within these categories, and particular regimes are analyzed in more detail in the later, country-­ specific chapters. 4. A distinction is drawn here and throughout between “victims,” who died or disappeared after suffering repressive political violence, “survivors” of it...