Evolution or Revolution? Transitional Justice Culture Across Borders
In recent years, both a theory and a practice of "transitional justice" have taken hold in democratizing contexts worldwide. As an organized and systematic set of beliefs and a way of ordering individual, group and state behavior according to those beliefs and practices, it can be characterized as a “culture,” one which has diffused transnationally via a variety of vectors, such as human rights NGOs, international lawyers, international criminal tribunals, and the media. This culture has been overtly didactic: it offers templates, normative guidance and a veritable database of national experiences to bolster the contention that transition to democracy requires a public accounting of the crimes of the past authoritarian regime. An interesting wrinkle in this story of one-way diffusion is provided by the experiences of countries which have defied or contradicted this master narrative, either by managing their democratic transitions and their consolidations through amnesties and pacts (Chile and Spain), or by reversing processes of transitional justice in response to untenable instability (Argentina). But the wrinkle deepens when we consider that all three of these countries have experienced, at different moments and to varying degrees, a return to transitional justice practices and debates at a later date, often years into consolidation. Was this the result of the increased projection of transnationalized “transitional justice culture,” responsible for a “revolution” in expectations underscored by the Pinochet arrest in 1998 and the Milosevic trials a few years later? Or are there more compelling “evolutionary” domestic-level explanations? This paper explores the competing hypotheses, analyzes the precepts and ideological contradictions of “transitional justice culture,” and contends that a key dyad connecting the revolutionary and evolutionary dynamics at work in the spread of anti-impunity norms across borders is formed by victims’ groups and national courts. Both have been the targeted reception sites for trasnationalized norms, and they have served as potential nodes of transformation for their respective national legal cultures. By suggesting that universalizing revolution is channeled, tempered and ultimately transformed by particularlized evolution, this paper argues for a more nuanced, multi-dimensional approach to transitional justice politics, at once highly globalized and yet not in the least homogeneous.
Claiming Rights across Borders: International Human Rights and Democratic Sovereignty
The status of international law and transnational legal agreements with respect to the sovereignty claims of liberal democracies has become a highly contentious theoretical and political issue. Although recent European discussions focus on global constitutionalism, there is increasing reticence on the part of many that prospects of a world constitution are neither desirable nor salutary. This article more closely considers criticisms of these legal transformations by distinguishing the nationalist from democratic sovereigntiste positions, and both, from diagnoses that see the universalization of human rights norms either as the Trojan horse of a global empire or as neocolonialist intentions to assert imperial control over the world. These critics ignore “the jurisgenerativity of law.” Although democratic sovereigntistes are wrong in minimizing how human rights norms improve democratic self-rule; global constitutionalists are also wrong in minimizing the extent to which cosmopolitan norms require local contextualization, interpretation, and vernacularization by self-governing peoples.
Grounding Global Justice: International Networks and Domestic Human Rights Accountability in Chile and El Salvador
The UK detention of former Chilean dictator Augusto Pinochet in 1998 was hailed at the time as an unprecedented demonstration of the possible efficacy of ‘global civil society’ networks in holding former heads of state to account for crimes against humanity. This article nonetheless questions the concept, as well as the practical efficacy, of globalised civil society action or ‘human rights lawyering’ as a trigger for the prosecution of past human rights violations. Based on extensive field research, the article argues that domestic factors, including domestic actor pressure and national judicial change, have proved more significant than international law or international activism in recent re-irruptions of the human rights accountability issue in Latin America's Southern Cone. The case of El Salvador, meanwhile, shows that transnational initiatives, while occasionally successful in their own right, have not been able to interrupt or foreshorten domestic post-transitional trajectories to the extent of independently creating favourable accountability conditions.