Evolution or Revolution? Transitional Justice Culture Across Borders

In recent years, both a theory and a practice of “transitional justice” have taken hold in democratizing contexts worldwide. As an organized and systematic set of beliefs and a way of ordering individual, group and state behavior according to those beliefs and practices, it can be characterized as a “culture,” one which has diffused transnationally via a variety of vectors, such as human rights NGOs, international lawyers, international criminal tribunals, and the media. This culture has been overtly didactic: it offers templates, normative guidance and a veritable database of national experiences to bolster the contention that transition to democracy requires a public accounting of the crimes of the past authoritarian regime. An interesting wrinkle in this story of one-way diffusion is provided by the experiences of countries which have defied or contradicted this master narrative, either by managing their democratic transitions and their consolidations through amnesties and pacts (Chile and Spain), or by reversing processes of transitional justice in response to untenable instability (Argentina). But the wrinkle deepens when we consider that all three of these countries have experienced, at different moments and to varying degrees, a return to transitional justice practices and debates at a later date, often years into consolidation. Was this the result of the increased projection of transnationalized “transitional justice culture,” responsible for a “revolution” in expectations underscored by the Pinochet arrest in 1998 and the Milosevic trials a few years later? Or are there more compelling “evolutionary” domestic-level explanations? This paper explores the competing hypotheses, analyzes the precepts and ideological contradictions of “transitional justice culture,” and contends that a key dyad connecting the revolutionary and evolutionary dynamics at work in the spread of anti-impunity norms across borders is formed by victims’ groups and national courts. Both have been the targeted reception sites for trasnationalized norms, and they have served as potential nodes of transformation for their respective national legal cultures. By suggesting that universalizing revolution is channeled, tempered and ultimately transformed by particularlized evolution, this paper argues for a more nuanced, multi-dimensional approach to transitional justice politics, at once highly globalized and yet not in the least homogeneous.