Making the Sum More Than its Parts: Civil Society and the Rule of Law in Transitional Justice

Prosecutions in the aftermath of mass human rights violations are often promoted as a way of developing the rule of law in emerging democracies. This is expected to happen as a direct result of upholding the norm of accountability and the capacity-building effects on the justice system. However, in transitional contexts, civil society can play an intermediary role between the state’s duty to investigate, prosecute, and punish human rights violations, the victims themselves and their experience in the legal process, and the wider public’s perception of the legitimacy of the judicial proceedings and their outcomes. Therefore, do prosecutions themselves foster the rule of law, or must other actors contribute? What can civil society offer to attempts to build the rule of law through trials? Comparing case studies of Bosnia-Herzegovina, which has been subject to the jurisdiction of the ICTY as well as (belatedly) a domestic war crimes court, and Argentina, where prosecutions were held domestically immediately following the fall of the military junta and now again in a phase of ‘late justice’, this paper will examine how local civil society organisations have engaged with the prosecutorial process. It suggests that prosecutions will be more successful in building the rule of law in cases where local civil society is more engaged in the legal process, through advocacy, representation of victims, or early stage investigation. As a result, it may also be that domestic justice process are able to contribute more directly to the rule of law, in part because local civil society is better placed under those conditions to engage effectively with the legal process and to “translate” that from a duty under international law into a process that builds the local legitimacy of the justice system.