SOAS Research Online

Abstract

In the aftermath of widespread human rights violations, states may engage in a process of transitional justice in an effort to diffuse conflict, prevent further violence, and promote reconciliation in society. Though transitional justice is a broad term that may encompass both judicial and non-judicial mechanisms, prosecution of perpetrators is frequently held to be of great importance, particularly by human rights organisations and victims’ associations. This thesis evaluates claims regarding the benefits of prosecutions, specifically their effects on building the rule of law, and identify the factors that play a role in how and under what conditions prosecutions are able to contribute to the development of the rule of law, where prosecutions are a central strategy of transitional justice. Although it has been suggested that prosecutions will contribute to the rule of law in an essentially linear fashion, it may be that prior conditions within the state determine the degree to which prosecutions are able to make a positive contribution to the development of the rule of law. Drawing on three case studies of countries that have undertaken domestic prosecutions as a primary transitional justice strategy – Argentina, Serbia, and Bosnia-Herzegovina – this thesis suggests that prosecutions will be more likely to contribute to the development of the rule of law where legal institutions already have capacity to enforce the norm of accountability by taking on politically sensitive and complex trials, there is a civil society that promotes legal accountability, and there is elite support for the prosecutions. Prosecutions may, therefore, contribute to the development of the rule of law under certain conditions but not in all circumstances.