A/HRC/36/50/Add.1
75.
Finally, the third external trend is the closing of civil spaces, the widespread
tendency of governments all over the world to establish mistrustful or even antagonistic
relations with civil society, particularly with the adoption of laws that limit and exercise
control over civil society organizations. In virtually every report heretofore, the Special
Rapporteur has pointed out the ways in which successful transitional justice experiences
have depended upon the contributions of a thriving civil society.
B.
Internal challenges
76.
In addition to the external difficulties just mentioned (as well as others), the field
faces some challenges that are more properly thought of as the outcome of its selfunderstanding and dynamics.
77.
Perhaps it is worth remembering that the field was born out of practice, as the
improvised result of the effort to find a practical solution to very real problems in the
heavily constrained democratic transitions of the Latin American Southern Cone, and not as
the result of the mere unfurling of a theory. While some of the strengths of the field can be
traced to these pragmatic origins, the fact is that the field remains undertheorized and that
this comes at a cost.
1.
Expansion of mandates
78.
There is no consensus on the aims that are properly pursued through the
implementation of the measures. This is neither unique to transitional justice nor fatal, but
nor is it inconsequential. The absence of theoretically-worked-out models of transitional
justice is expressed in the plethora of (mutually incompatible) extraordinary effects
attributed to the measures.
79.
When the lack of theory is accompanied by scant efforts to monitor and evaluate the
actual results of the implementation of the measures, not to mention any serious functional
analysis of what the familiar transitional justice tools are good for, of what they are capable
of delivering, this is sufficient for an enormous lack of discipline.
80.
It should then not come as a surprise that the literature (fortunately, thus far, not so
much the practice) of transitional justice is dominated by “aspirational” thinking. One way
in which this is beginning to manifest itself in practice, however, is in the expansion of
mandates of transitional justice measures, particularly truth commissions. In his report to
the Human Rights Council in 2013, the Special Rapporteur documented the trends towards
the expansion of the temporal, thematic and functional dimensions of truth commission
mandates, without any corresponding increase in their powers. So while the first few truth
commissions concentrated on fact-finding and victim-tracing (and mainly succeeded at
those jobs), these functions have been replaced by a significantly broader set of functions,
without any obvious regard for whether such commissions are “fit to purpose”. Under these
conditions it should come as no surprise that these trends are accompanied by a decline in
the take-up of truth commission recommendations. 51
2.
The elision of differences between post-authoritarian and post-conflict contexts
81.
Transitional justice emerged as a response to massive human rights violations
largely in the Southern Cone countries of Latin America, to some extent in Central and
Eastern Europe, and later on in South Africa. Despite the significant differences between
these countries, they share two characteristics: a relatively high degree of
institutionalization and the need to redress violations that came about as a result of the
abusive exercise of State power. More recently, transitional justice has been implemented
in countries with a different degree of State institutionalization; in these contexts, there is a
wider range of violations, which are the result more of conflict and social upheaval than of
authoritarian rule.
51
16
A/HRC/24/42.
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