Reassessing the boundaries of transitional justice: An inquiry on political transitions, armed conflicts, and human rights violations

Abstract

This chapter proposes a reappraisal of transitional justice through the study of the nature and function of the rule of law it conveys. As originally conceived, transitional justice embraces a concept of the rule of law that is sensitive to the conditions of the political transition, in which law is caught in inexorable tensions between the past and the future. Yet, the increasing use of transitional justice to deal with armed conflicts and human rights violations irrespective of any political transition has created a conceptual and normative disorder, which leads to assimilating the use of transitional mechanisms to that of transitional justice. Should transitional justice apply to situations other than those of political transition? In what other transition-like situations is a sui generis concept of the rule of law justified? Can transitional justice mechanisms be used in situations other than political transitions? The author analyzes these questions bearing in mind that an enlarged and unjustified use of transitional justice may render the concept of transitional justice analytically, descriptively, and normatively meaningless to law. The case study of Colombia shows the perverse effects of conceptual vagueness and brings to light the practical impacts that using an enlarged conception of transitional justice has upon the ordinary rule of law.