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Beyond Impunity? Post-Transitional Justice and Human Rights Trials after Amnesty

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Abstract:

This paper asks whether the 1980s 'transitional justice' model that applied domestic truthtelling and amnesty to past atrocity is now out of date, replaced by a trend towards greater domestic accountability. The recent experience of Latin America, in particular, suggests that settlements that privileged stability over justice in the interests of securing democratic change are now giving way. Countries where institutionalised impunity was offered to both state and non state perpetrators of massive human rights violations and violations of humanitarian law are now seeing vigorous challenges to the practice. In the Southern Cone of Latin America, domestic amnesty laws have been overturned or reinterpreted and hundreds of former military officers are on trial for disappearance, executions or torture. Practice is patchier in Central America and Peru, but everywhere the principle of suppressing prosecution of particularly egregious crimes in the name of a greater social good seems to be under challenge. Interestingly these changes, which some attribute to a coming of age of international law in the globalised era, are taking place in a post-9/11 world in which Western powers including the US are if anything increasingly hostile to the notion that human rights norms can trump domestic sovereign discretion. The paper, based on a recent book by the same author, accordingly explores the idea that domestic rather than international dynamics are driving change. The paper argues that new on the ground realities require a new framework, that of 'post-transitional justice', to explore and understand what these new processes are telling us about the causes and consequences of holding torturers to account. The framework, developed in the paper, shows how change is increasingly driven by legally-literate grassroots mobilisation rather than state policy choices. The extent and reach of change nonetheless relies on judicial receptivity and advances in rule of law, and the prospects for breakthroughs against impunity therefore depend on related developments in the judicialisation of politics and in judicial reform. Applying a political science perspective to legal processes, the paper studies legal processes as political processes and argues that mobilising histories, judicial personalities, significant anniversaries and other national political dynamics help explain why some countries have gone down the road of formal justice while others have not. The paper draws on detailed empirical evidence from Chile and El Salvador, but asks whether the framework might have wider applications. Shedding light on when, where and under what conditions rights norms turn into rights practice is of interest for both theorists and practitioners evaluating the use of national rather than international or hybrid tribunals in post-conflict and regime shift situations
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Name: The Law and Society Association
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http://www.lawandsociety.org


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URL: http://citation.allacademic.com/meta/p495649_index.html
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MLA Citation:

Collins, Cath. "Beyond Impunity? Post-Transitional Justice and Human Rights Trials after Amnesty" Paper presented at the annual meeting of the The Law and Society Association, Westin St. Francis Hotel, San Francisco, CA, May 30, 2011 <Not Available>. 2014-11-25 <http://citation.allacademic.com/meta/p495649_index.html>

APA Citation:

Collins, C. , 2011-05-30 "Beyond Impunity? Post-Transitional Justice and Human Rights Trials after Amnesty" Paper presented at the annual meeting of the The Law and Society Association, Westin St. Francis Hotel, San Francisco, CA <Not Available>. 2014-11-25 from http://citation.allacademic.com/meta/p495649_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: This paper asks whether the 1980s 'transitional justice' model that applied domestic truthtelling and amnesty to past atrocity is now out of date, replaced by a trend towards greater domestic accountability. The recent experience of Latin America, in particular, suggests that settlements that privileged stability over justice in the interests of securing democratic change are now giving way. Countries where institutionalised impunity was offered to both state and non state perpetrators of massive human rights violations and violations of humanitarian law are now seeing vigorous challenges to the practice. In the Southern Cone of Latin America, domestic amnesty laws have been overturned or reinterpreted and hundreds of former military officers are on trial for disappearance, executions or torture. Practice is patchier in Central America and Peru, but everywhere the principle of suppressing prosecution of particularly egregious crimes in the name of a greater social good seems to be under challenge. Interestingly these changes, which some attribute to a coming of age of international law in the globalised era, are taking place in a post-9/11 world in which Western powers including the US are if anything increasingly hostile to the notion that human rights norms can trump domestic sovereign discretion. The paper, based on a recent book by the same author, accordingly explores the idea that domestic rather than international dynamics are driving change. The paper argues that new on the ground realities require a new framework, that of 'post-transitional justice', to explore and understand what these new processes are telling us about the causes and consequences of holding torturers to account. The framework, developed in the paper, shows how change is increasingly driven by legally-literate grassroots mobilisation rather than state policy choices. The extent and reach of change nonetheless relies on judicial receptivity and advances in rule of law, and the prospects for breakthroughs against impunity therefore depend on related developments in the judicialisation of politics and in judicial reform. Applying a political science perspective to legal processes, the paper studies legal processes as political processes and argues that mobilising histories, judicial personalities, significant anniversaries and other national political dynamics help explain why some countries have gone down the road of formal justice while others have not. The paper draws on detailed empirical evidence from Chile and El Salvador, but asks whether the framework might have wider applications. Shedding light on when, where and under what conditions rights norms turn into rights practice is of interest for both theorists and practitioners evaluating the use of national rather than international or hybrid tribunals in post-conflict and regime shift situations


Similar Titles:
The European Union and Transitional Justice: Confronting Human Right Violations in Europe and Beyond

Transitional Justice as an Elite Discourse: Human Rights Practice Between the Global and the Local in Post-Conflict Nepal


 
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