Bargaining justice: A theory of transitional justice compliance

Abstract

A global transitional justice norm has emerged over the past two decades, which prescribes the appropriate way for States to address responsibility for grave human rights abuses. This international norm maintains that, as part of the process of post-conflict or post-authoritarian transition, the most serious human rights violations, such as war crimes, crimes against humanity and genocide, should be adjudicated in a court of law or another type of justice or truth-seeking institution and not left to either victor’s justice or forgiveness. While these crimes were historically dealt with by executions or summary trials set up by victors after conflict, or simply remained unpunished, they are now considered just like other crimes that demand a proper trial and due process (Teitel 2003; Roht-Arriaza and Mariezcurrena 2006; Arthur 2009). The international norm of transitional justice was further established, legalised and codified with the creation of, first, the ad hoc ICTY and ICTR, and the Special Court for Sierra Leone, and then the permanent ICC in 1998. The international prestige and publicity of the South African TRC also made this truth-seeking model of transitional justice particularly popular and emulated by dozens of transitioning States (Hayner 2001). And while the increasing presence and visibility of transitional justice has been followed by the increasing attention of the scholarly literature (Olsen et al 2010; Thoms et al 2010; Leebaw 2011; Sikkink 2011), not enough attention has been paid to questions of how exactly States go about complying with transitional justice requirements under international pressures, and to what domestic political effect (Peskin 2008; Lamont 2009). In this chapter, I offer a theory of transitional justice compliance. I explain varying breadth and depth of transitional justice adoption by looking at domestic political conditions that motivate local actors to engage with international norms and institutions in different ways. I show how domestic compliance with transitional justice models always faces significant and varied domestic challenges, which often produce unexpected and contradictory policy effects (Boesenecker and Vinjamuri 2011).