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Abstract: The majority of scholarly consideration on the principles of transitional justice has focused upon how emerging democracies should deal with former regimes immediately following violent conflict. However, consolidated democracies have also begun to turn to transitional justice mechanisms in order to address historical legacies of violence and repression. This article examines Spain and Canada, two countries dealing with seemingly disparate issues: the legacy of the Civil War and Franco's repressive regime, and the abuses of the Indian Residential Schools system, respectively. However, both nations have been forced to respond to similar questions regarding the merits of revisiting a painful past well after democratic consolidation. The article first discusses the proliferation of transitional justice principles into consolidated democracies, and considers the argument that such processes may destabilize and divide society, particularly by exacerbating federalist divisions. It conclu
Spain is a notable exception to the implicit rules of late twentieth-century democratization: after the death of General Francisco Franco in 1975, the recovering nation began to consolidate democracy without enacting any of the mechanisms promoted by the international transitional justice movement. There were no political trials, no truth and reconciliation commissions, no formal attributions of blame, and no apologies. Instead, Spain's national parties negotiated the Pact of Forgetting, an agreement intended to place the bloody Spanish Civil War and the authoritarian excesses of the Franco dictatorship firmly in the past, not to be revisited even in conversation. Formalized by an amnesty law in 1977, this agreement defies the conventional wisdom that considers retribution and reconciliation vital to rebuilding a stable nation. Although not without its dark side, such as the silence imposed upon the victims of the Civil War and the dictatorship, the Pact of Forgetting allowed for the peaceful emergence of a democratic state, one with remarkable political stability and even a reputation as a trailblazer for the national rights and protections of minority groups. Omar G. Encarnación examines the factors in Spanish political history that made the Pact of Forgetting possible, tracing the challenges and consequences of sustaining the agreement until its dramatic reversal with the 2007 Law of Historical Memory. The combined forces of a collective will to avoid revisiting the traumas of a difficult and painful past and the reliance on the reformed political institutions of the old regime to anchor the democratic transition created a climate conducive to forgetting. At the same time, the political movement to forget encouraged the embrace of a new national identity as a modern and democratic European state. Demonstrating the surprising compatibility of forgetting and democracy, Democratization Without Justice in Spain offers a crucial counterexample to the transitional justice movement. The refusal to confront and redress the past did not inhibit the rise of a successful democracy in Spain; on the contrary, by leaving the past behind, Spain chose not to repeat it.
This dissertation elaborates on a new concept - post-transitional justice - to define the re-emergence of the issues of the authoritarian past onto the political agenda after democratic consolidation. The thesis sets out to understand the reasons why the past is coming back in certain consolidated democracies and not in others. It argues that in order to understand why these issues return to the agenda it is necessary to analyze them in light of the politico-institutional characteristics of each post-authoritarian democracy. The results suggest that 'political willingness' and 'institutional capacity', as they have been theorized in this research, are two strong factors that help explain the link between the 'politics of the past' and the 'politics of the present'. The analysis of the two positive and one negative case have shown that the past returns to the political agenda because parties aim to change the dominant narrative of the past, but also the narrative of the transition and of the transitional justice process. The absence of post-transitional justice may result from either lack of willingness or capacity, but while the latter may represent a short-term constraint, the former is likely to be more structural and therefore more enduring. Hence, understanding the qualitative dimensions of 'willingness' to bring back the past (or the lack thereof) seems to lead to a more solid knowledge about the ongoing impact of authoritarian legacies in consolidated democracies. There are two major conclusions to be drawn from these cases: first, post-transitional justice seems to be more likely to occur when democracy emerges from a negotiated transition instead of a clear break with the past; second, post-transitional justice seems to be more likely to occur when the former elite has been legitimized in the new regime and has had formal access to government.
Introducton: research questions and spiral effect -- Methodology -- The concept of regime change and consolidation -- Transitional justice measures -- The case studies: Germany, Spain and Turkey -- Germany -- Regime consolidation through transitional justice
In a consolidated democracy, amnesties and pardons do not sit well with equality and a separation of powers; however, these measures have proved useful in extreme circumstances such as transitions from dictatorships to democracies. Focusing on Spain, this book analyses its transition, from 1936 to the present, within a comparative European context.
In a consolidated democracy, amnesties and pardons do not sit well with equality and a separation of powers; however, these measures have proved useful in extreme circumstances, such as transitions from dictatorships to democracies, as has occurred in Greece, Portugal and Spain. Focusing on Spain, this book analyses the country's transition, from the antecedents from 1936 up to the present, within a comparative European context. The amnesties granted in Greece, Portugal and Spain saw the release of political prisoners, but in Spain amnesty was also granted to those responsible for the grave violations of human rights which had been committed for 40 years. The first two decades of the democracy saw copious normative measures that sought to equate the rights of all those who had benefitted from the amnesty and who had suffered or had been damaged by the civil war. But, beyond the material benefits that accompanied it, this amnesty led to a sort of wilful amnesia which forbade questioning the legacy of Francoism. In this respect, Spain offers a useful lesson insofar as support for a blanket amnesty - rather than the use of other solutions within a transitional justice framework, such as purges, mechanisms to bring the dictatorship to trial for crimes against humanity, or truth commissions - can be traced to a relative weakness of democracy, and a society characterised by the fear of a return to political violence. This lesson, moreover, is framed here against the background of the evolution of amnesties throughout the twentieth century, and in the context of international law. Crucially, then, this analysis of what is now a global reference point for comparative studies of amnesties, provides new insights into the complex relationship between democracy and the varying mechanisms of transitional justice. Francoism. In this respect, Spain offers a useful lesson insofar as support for a blanket amnesty - rather than the use of other solutions within a transitional justice framework, such as purges, mechanisms to bring the dictatorship to trial for crimes against humanity, or truth commissions - can be traced to a relative weakness of democracy, and a society characterised by the fear of a return to political violence. This lesson, moreover, is framed here against the background of the evolution of amnesties throughout the twentieth century, and in the context of international law. Crucially, then, this analysis of what is now a global reference point for comparative studies of amnesties, provides new insights into the complex relationship between democracy and the varying mechanisms of transitional justice.
KGB Files and Agents.
Truth Recovery and Transitional Justice investigates why some societies defer transitional justice issues after successful democratic consolidation.
The SAGE Handbook of Human Rights will comprise a two volume set consisting of more than 50 original chapters that clarify and analyze human rights issues of both contemporary and future importance. The Handbook will take an inter-disciplinary approach, combining work in such traditional fields as law, political science and philosophy with such non-traditional subjects as climate change, demography, economics, geography, urban studies, mass communication, and business and marketing. In addition, one of the aspects of mainstreaming is the manner in which human rights has come to play a prominent role in popular culture, and there will be a section on human rights in art, film, music and literature. Not only will the Handbook provide a state of the art analysis of the discipline that addresses the history and development of human rights standards and its movements, mechanisms and institutions, but it will seek to go beyond this and produce a book that will help lead to prospective thinking.
Regime Consolidation and Transitional Justice explores the effect of transitional justice measures on 'regime consolidation', or the means by which a new political system is established in a post-transition context. Focusing on the long-term impact of transitional justice mechanisms in three countries over several decades, the gradual process by which these political systems have been legitimatised is revealed. Through case studies of East and West Germany after World War II, Spain after the end of the Franco dictatorship in 1975 and Turkey's long journey to achieving democratic reform, Regime Consolidation and Transitional Justice shows how transitional justice and regime consolidation are intertwined. The interdisciplinary study, which will be of interest to scholars of criminal law, human rights law, political science, democracy, autocracies and transformation theories, demonstrates, importantly, that the political systems in question are not always 'more' democratic than their predecessors and do not always enhance democracy post-regime consolidation.