restricted access 3. Studying Post-Transitional Justice
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3 studying post-­ transitional justice In the previous chapter it was proposed that the closure of state transitional justice initiatives by amnesty gives way to post-­ transitional justice, a qualitatively distinct phase in the accountability debate. The present chapter sets out in more detail the theoretical and methodological approach put forward for studying post-­ transitional justice in national settings. It is suggested that a survey of the post-­ transitional trajectories of human rights organizations, combined with in-­ depth analysis of particular post-­ transitional accountability cases, is the most adequate procedure. The second part of the chapter describes in more detail the actors, sites, and dynamic relationships within and through which post-­ transitional justice develops and post-­ transitional accountability initiatives may be observed. Research Themes in Post-­ transitional Justice Accountability actors and national judiciaries have been identified as major objects of study. The term “accountability actors” refers to all individuals or bodies, domestic, external, or international, who promote judicial accountability measures in either criminal or civil form.1 These actors are analyzed from an opportunity structures perspective. The primary research interest is in actors who have accessed or attempted to access judicial settings. Legal cases presented to domestic courts are therefore used as the prime identifier of post-­ transitional justice activity, although historical HROs that survived 1. Those who contest or oppose accountability claims, such as defendants or their representatives , will be excluded from this usage. studying post-­ transitional justice   37 into the post-­ transitional period are also surveyed to identify what affected organizations’ decisions to pursue or discount legal strategy at different times. Justice systems are approached as the principal institutional interlocutor and counterpart of accountability actors. The focus here is on their receptivity to accountability actions over time.2 For reasons of space and scope, the impact of wide-­ ranging judicial reforms in many post-­ transitional Latin American societies is considered only with reference to those aspects most clearly identified by judicial actors, analysts, or accountability actors as of direct relevance to accountability outcomes. As discussed in the introduction, research settings were determined with the desire to keep in view the framing issues of transitional amnesty legislation and subsequent domestic or transnationalized legal accountability activity . A single study of one national setting can permit a detailed analysis of domestic accountability activity. It does not, however, illuminate the extent to which transnational accountability activity both responds to and affects differing levels of preexisting domestic legal engagement—something only a comparative study could begin to explore. Nonetheless, the highly specific nature of transitional trade-­ offs and amnesty provisions means that domestic political contexts must be taken into proper account. They accordingly remain central to the exploration of post-­ transitional justice presented here. Meanwhile the dynamics of transnationalized accountability activity suggest a need to also attend to legal cases about—rather than those solely occurring within—a particular national territory.3 Chile and El Salvador were selected for both theoretical and logistical reasons as the best available, though not the only possible, combination of settings available and accessible for studying post-­ transitional justice. Some of the particular reasons for selection have been set out in the introduction to this volume. In addition to these, Chile displays comparatively high, although internally fluctuating, levels of domestic accountability activity, and moreover displayed often-­ overlooked domestic accountability change even before it was thrust back into the international spotlight by the 1998 Pinochet arrest. El 2. This without wishing to deny the extent to which actor-­ focused analysis of judicial opportunity structures, mobilization, goal and interest construction, and repertoire innovation might also be appropriate in a study more directly focused on the judiciary. 3. Thus cases about Chile and Chilean events have been heard in a variety of national court settings in recent years, and human rights crimes committed by Chileans on foreign soil have been the subject of court action in the United States and Argentina. Similarly, cases about events in El Salvador or involving Salvadorean plaintiffs, defendants, and victims have been heard in the United States. See chapters 5 and 7. 38   post-transitional justice Salvador provides an illuminating counter-­ case of a setting in which legal activity could not or did not take root as a primary response to HRVs, while a recent revival of domestic accountability efforts has met with only limited success. Both countries also provide opportunities to assess domestic perceptions of and involvement with transnationalized accountability actions prior to and during the late 1990s. In each setting, the involvement of U...