Hostname: page-component-8448b6f56d-tj2md Total loading time: 0 Render date: 2024-04-19T06:17:48.872Z Has data issue: false hasContentIssue false

The roots of transitional accountability: interrogating the ‘justice cascade’

Published online by Cambridge University Press:  19 February 2013

Padraig McAuliffe*
Affiliation:
Dundee Law School, University of Dundee

Extract

This article argues that what is seen as a justice cascade may in fact amount to merely an advocacy cascade, which has facilitated justice policies that democratising states would inevitably have pursued (and helped neutralise opposition), but which in causal terms has been far less influential on justice policy than is commonly assumed. Because transitional justice is generally presented in very idealistic terms, scholars in the field have begun to acknowledge that its virtuous effects are more easily presumed than proven (Van der Merwe, 2009, p. 121). Amongst advocates and activists in particular, one sees in the literature an emotional commitment to transitional justice that generally foregoes doubts about its overall efficacy even where isolated shortcomings are accepted. Policy has hitherto proceeded less from analysis to conclusions than from commitments to action. Some argue that ‘the commitment to advocacy has come at the expense of progress in empirical research’ (Vinjamuri and Snyder, 2004, p. 345) – the benefits of certain mechanisms are assumed instead of treated as empirical propositions to be proven rigorously. Because so many of the early debates about transitional justice took the form of partisan advocacy in the dichotomised days of the ‘justice versus peace’ and ‘truth versus justice’, prospective hypotheses about likely outcomes dominated the literature at the expense of retrospective assessments of what generally had or had not worked. For at least a decade, scholars have noted the paucity of studies systematically examining the correlation between transitional justice and social reconstruction. Subsequently, the literature has variously been criticised for its dependency on anecdote and hypothesis (Crocker, 2002, p. 541), analogy (Brahm, 2008, p. 3) and wishful thinking (Olsen, Payne and Reiter, 2010, pp. 25–26). Until recently, scholarship had primarily been based on single or dual mechanism case-studies and comparative qualitative case-studies of a limited number of states, which gave disproportionate emphasis to certain transitions or transition types conducive to study. This in turn made generally applicable policy conclusions difficult to elaborate. It has been argued that human rights research in general, and transitional justice research in particular, are enterprises directed at manufacturing legitimacy for their fields of practice (Gready, 2009, p. 159). Such endeavours must, however, retain at least a threshold plausibility. As a fear developed among practitioners and theorists about the damage to the credibility of transitional justice from wild, unsubstantiated claims, there has emerged in recent years a commendable attempt to clarify the causal relationships (if any) between individual mechanisms and general ends. By employing social science methodologies and hard data, a tentative literature has emerged on how to assess the impact of transitional justice (Thoms, Ron and Paris, 2010). The expectation is that this scholarship can chip away at falsity and overly ambitious claims. This article examines the extent to which two recent works do this. After surveying what is novel about their distinctive methodologies, Part II examines the primary difference between the works, namely the extent to which the work of transnational human rights activists has impacted on the decision of democratising states to pursue criminal accountability for crimes of the past. Part III explores alternative explanations for why states are seemingly more willing to undertake trials and the extent to which the works in question control for these variables. Part IV considers the extent to which the normative change both books note has impacted on the security dilemmas inherent in transitional accountability. The article concludes that transitional justice research has some distance yet to travel in disentangling correlation from cause.

Type
Review essay
Copyright
Copyright © Cambridge University Press 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Barahona de Brito, Alexandra (2010) ‘Transitional Justice and Memory: Exploring Perspectives’, South European Society and Politics 15: 359–76.Google Scholar
Bhansali, Lisa and Biebesheimer, Christina (2006) ‘Measuring the Impact of Criminal Justice Reform in Latin America’, in Carothers, Thomas (ed.), Promoting the Rule of Law Abroad: In Carothers, ThomasWashington, DC: Carnegie Endowment for International Peace, 301326.Google Scholar
Brahm, Eric (2008) ‘The Impact of Transitional Justice in Post-Conflict Environments’, Ralph Bunche Institute for International Studies Paper.Google Scholar
Carothers, Thomas (2002) ‘The End of the Transition Paradigm’, Journal of Democracy 13: 521.CrossRefGoogle Scholar
Charlesworth, Hilary (2002) ‘International Law: A Discipline of Crisis’, Modern Law Review 65: 377–92.CrossRefGoogle Scholar
Cohen, Stanley (1995) ‘State Crimes of Previous Regimes: Knowledge, Accountability, and Policing the Past’, Law and Social Inquiry 20: 750.Google Scholar
Collier, Paul, Elliot, Lani, Hegre, Håvard, Hoeffler, Anke, Reynal-Querol, Marta and Sambanis, Nicholas (2003) Breaking the Conflict Trap: Civil War and Development. New York: Oxford University Press.Google Scholar
Collins, Cath (2010) Post-Transitional Justice: Human Rights Trials in Chile and El Salvador. Philadelphia: Pennsylvania State University Press.Google Scholar
Coomans, Fons, Grunfeld, Fred and Kamminga, Menno T. (2010) ‘Methods of Human Rights Research: A Primer’, Human Rights Quarterly 32: 170–87.Google Scholar
Crocker, David A. (2002), ‘Democracy and Punishment: Punishment, Reconciliation and Democratic Deliberation’, Buffalo Criminal Law Review 5: 509549.Google Scholar
Elster, Jon (2004) Closing the Books: Transitional Justice in Historical Perspective. New York: Cambridge University Press.Google Scholar
Finnemore, Martha and Sikkink, Kathryn (1998) ‘International Norm and Political Change’, International Organisation 52: 887917.Google Scholar
Fletcher, Laurel E. and Weinstein, Harvey (2002) ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, Human Rights Quarterly 24: 573639.Google Scholar
Follesdal, Andreas (2009) ‘Methods of Philosophical Research on Human Rights’, in Coomans, Fons, Grunfeld, Fred and Kamminga, Menno T. (eds), Methods of Human Rights Research. Antwerp: Interstentia, 233–46.Google Scholar
Gready, Paul (2005) ‘Reconceptualising Transitional Justice: Embedded and Distant Justice’, Conflict, Security & Development 5: 321.Google Scholar
Gready, Paul (2009) ‘Telling Truth? The Methodological Challenges of Truth Commissions’, in Coomans, Fons, Grunfeld, Fred and Kamminga, Menno T. (eds), Methods of Human Rights Research. Antwerp: Interstentia, 159–85.Google Scholar
Huneeus, Alexandra (2007) ‘Norms Trickling Down: Of Judges, the Justice Cascade and Pinochet Era Cases in Chile’, Santa Clara Journal of International Law 5: 352–92.Google Scholar
Huntingdon, Samuel P. (1991) The Third Wave: Democratization in the Late Twentieth Century. Oklahoma: University of Oklahoma Press.Google Scholar
ICC Office of the Prosecutor (2003) ‘Informal Expert Paper: The Principle of Complementarity in Practice’. Available at: www.icc-cpi.int/iccdocs/doc/doc654724.PDF.Google Scholar
Keck, Margaret and Sikkink, Kathryn (1998) Activists Beyond Border: Advocacy Networks in International Politics. Ithaca, NY: Cornell University Press.Google Scholar
Kennedy, David A. (2004) The Dark Sides of Virtue: Reassessing International Humanitarianism. Princeton, New Jersey: Princeton University Press.Google Scholar
Kirchheimer, Otto (1961) Political Justice: The Use of Legal Procedure for Political Ends. Princeton: Princeton University Press.Google Scholar
Laplante, Lisa (2008–2009) ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’, Virginia Journal of International Law 49: 915–84.Google Scholar
Levy, Daniel (2010) ‘Recursive Cosmopolitization: Argentina and the Global Human Rights Regime’, British Journal of Sociology 61: 579–86.Google Scholar
Lutz, Ellen and Sikkink, Kathryn (2001) ‘The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America’, Chicago Journal of International Law 2: 134.Google Scholar
Miller, Zinaida (2008) ‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice’, International Journal of Transitional Justice 2: 266–91.Google Scholar
O'Donnell, Guillermo and Schmitter, Philippe C. (1986) Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies. Baltimore, MD: Johns Hopkins University Press.Google Scholar
Paris, Roland (2004) At War's End: Building Peace After Civil Conflict. New York: Cambridge University Press.Google Scholar
Reydams, Luc (2010) ‘The Rise and Fall of Universal Jurisdiction’, in Schabas, William and Bernaz, Nadia (eds), Routledge Handbook of International Criminal Law. New York: Routledge, 337–54.Google Scholar
Roht-Arriaza, Naomi and Marrizcuena, Javier (eds) (2006) Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice. New York: Cambridge University Press.CrossRefGoogle Scholar
Serrano, Monica and Kenny, Paul (2005) ‘Columbia and the Andean Crisis’, in Chesterman, Simon, Ignatieff, Michael and Thakur, Ramesh (eds), Making States Work: State Failure and the Crisis of Governance. New York: United Nations University Press, 102121.Google Scholar
Sikkink, Kathryn and Booth Walling, Carrie (2007) ‘The Impact of Human Rights Trials in Latin America’, Journal of Peace Research 44: 427–45.Google Scholar
Smiley, Marion (2001) ‘Democratic Justice in Transition’, Michigan Law Review 99: 1332–47.Google Scholar
Snyder, Jack and Vinjamuri, Leslie (2003–2004) ‘Trials and Errors: Principle and Pragmatism in Strategies on International Justice’, International Security 28: 544.Google Scholar
Sriram, Chandra Lekha (2003) ‘Revolutions in Accountability: New Approaches to Past Abuses’, American University International Law Review 19: 310429.Google Scholar
Teitel, Ruti (2001) Transitional Justice. Oxford: Oxford University Press.Google Scholar
Thoms, Oskar, Ron, James and Paris, Roland (2010) ‘State-Level Effects of Transitional Justice: What Do We Know?’, International Journal of Transitional Justice 4: 126.Google Scholar
van der Merwe, Hugo (2009) ‘Delivering Justice During Transition: Research Challenges’, in van der Merwe, Hugo, Baxter, Victoria and Chapman, Audrey R. (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research. Washington, DC: USIP Press, 115–42.Google Scholar
Vinjamuri, Leslie and Snyder, Jack (2004) ‘Advocacy and Scholarship in the Study of International War Crimes Tribunals and Transitional Justice’, Annual Review of Political Science 7: 345–62.Google Scholar
Zalaquett, Jose (1992) ‘Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations’, Hastings Law Journal 43: 1425–38.Google Scholar