This volume examines the effects, risks, and potential of extending the field of transitional justice to cases that do not present a key moment of political transition to peace or democracy and instead are defined by political continuity and ongoing conflict. It begins with analyses of the Colombian case before moving onto to experiences and challenges in other contexts in order to foster comparative reflection. Other cases include Uganda, Bosnia and Herzegovina, Cambodia, Argentina, South Africa, Honduras, El Salvador and Afghanistan.
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The international legal landscape, and also domestic in many cases, that is relevant for negotiating transition is arguably much different today than it was at the time of the political processes that preceded the most referenced transitional justice experiments such as Chile, Argentina, and South Africa. There is an increasing consensus that blanket amnesties and pardons run the risk of violating states’ duties to investigate, prosecute, and punish grave violations of human rights under the major universal and regional treaties. Universal jurisdiction, as well as the Rome Statute and International Criminal Court, also suggest that an amnesty offered by a state for international crimes will not necessarily guarantee individuals immunity from prosecution. Thus, the recourse to transitional justice language, considerations, and tools before there is a defined transition to peace as a means to address the exigencies of international justice is likely to become the norm and not the exception.
The Colombian case in particular has been presented to the domestic audience, as well as to foreign counterparts and the international community, as a new and improved brand of transitional justice suited to the evolving international landscape—where the offer of full and broad impunity is no longer accepted as part of the toolbox for states negotiating transition and where the duty to guarantee victims’ rights is firmly established in international (and in many cases domestic) law. The inclusion of the Colombian case in the international field of transitional justice and its frequent citation as an example of domestic efforts to combat impunity mean that the importance of critical analysis of the use of transitional justice in Colombia today extends beyond its impact within the country.
This project of dialogue and study, of which this volume is the final product, has sought to stimulate reflection, grounded in case studies, on the effects, risks, and potential of extending the field of transitional justice to cases that do not present a key moment of political transition to peace or democracy and instead are defined by political continuity and ongoing conflict. To this end, this volume contains a collection of detailed, contemporary analyses of the Colombian case (Part I), as well as of relevant experiences and challenges from both transitional and non-transitional cases (Part II) in order to foster comparative reflection.
In order to provide a backdrop for the dilemmas of transitional justice that are explored in depth in this volume, this introduction will present the context in which transitional justice is being applied in Colombia. Transitional justice serves as a field of contention, and the uncertainty as to which objectives in which instances are most served by the recourse to transitional justice language and measures is a central focus of this project. The introduction concludes with a general outline of the collection and a summary of the main issues addressed by each chapter.
The studies in the first part of this collection each analyze in depth certain “spaces of contention” in transitional justice in Colombia. The authors examine in detail how the different key players—including the Courts, the administration, civil society, the victims, and the perpetrators—have adopted transitional justice concepts or approaches and how such stances relate to their interests in the contention. The chapters examine what the consequences have been in terms of the shape transitional justice is taking in Colombia and what impact this might have more broadly.
The second part of this volume gathers analysis of foreign experiences with some of the broad questions that are raised by the application of transition justice in non-transitional contexts such as Colombia. The chapters look at contexts of post-authoritarian transition and post-conflict transition, as well as non-transitional cases. Based on their expertise as practitioners and researches in a particular national context, the authors look at questions such as: the influence of international actors and standards of justice, the impact of transitional justice initiatives on the ordinary operation of domestic legal systems, the role of domestic judicial actors, and contexts of ongoing conflict and violence.