Establishing a Normative Framework for Evaluating Diverse Cases of Transitional Justice

Based on an assessment of contemporary practices of dealing juridically with large-scale human rights violations, this paper argues that there is a need for updating important aspects of transitional justice theory. The field of transitional justice emerged around the so-called third wave of democratization, most notably the transitions from military rule in Latin America in the 1980s and the transitions in Central and Eastern Europe following the fall of communist governments. However, though institutionalized responses to mass violence and state-sponsored repression now take place in highly diverse cases, transitional justice theory remains dominated by the claim that law and justice should primarily promote liberal democratic values. This paper argues that it is useful to operate with a differentiated normative framework, thereby endorsing a more nuanced understanding of the interests that transitional justice in fact serves as well as the legitimacy of these. In doing so, this paper distinguishes between transitional justice in cases of liberal transitions, non-liberal transitions, deeply conflicted societies that have not seen a fundamental regime change, and consolidated democracies. Though rejecting one consistent normative framework, which prioritizes liberalization and democratization as the end product of transitional justice, the present paper concludes that it is possible to establish some overall positive goals of transitional justice, namely attending to the needs of victims, preventing the recurrence of large-scale violence and, finally, creating a more just society.