Escaping or Reinforcing Hierarchies? Norm Relations in Transitional Justice

Abstract

The global project of transitional justice (TJ) traditionally has been packaged in a multi-pillar model with criminal justice, truth recovery, reparations, institutional reform, and memorialization, and the norms they enshrine, seemingly presented as interventions of equivalent status at the level of policy. This article aims to enhance the theorizing on TJ as a “norm cluster” by comparatively examining the relations between the norms found in the cluster in transitional practices in Colombia and Bosnia and Herzegovina. We claim that the relations between the norms of TJ are hierarchically organized, with the anti-impunity norm being positioned as normatively superior. Through an analysis of TJ processes in the two countries in the past three decades, we discuss how such a hierarchy was established, secured, and challenged. Our findings show that hierarchical relations arise primarily due to legitimacy concerns and are manifested as changes in the internal structure of the anti-impunity norm whereby its prescribed behaviors or measures, i.e., criminal trials, seek to fulfill a range of new values. We argue that, in search for ownership and legitimacy, political actors have overemphasized the role of criminal trials by increasing their “social weight” and positioned them as indispensable for achieving the values of truth, reconciliation, and non-recurrence, disturbing the internal structures and co-opting the spaces of other measures in the TJ norm cluster. Such normative superiority of anti-impunity is significant and detrimental for the TJ global project. It has resulted in other TJ mechanisms being weakened by or dependent on judicial procedures, and it has enhanced competing and revisionist truth-making while promoting a narrow understanding of accountability. Ultimately, we establish that the normative superiority of criminal justice continues to challenge the prospects of complex and comprehensive TJ and that the place of anti-impunity in the norm cluster should be rethought.