The Logic of Transitional Justice and State Repression: The Effects of Human Rights Prosecutions in Post-Conflict States

• Author: Risa Kitagawa,Sam R. Bell
• DOI: 10.1177/00220027211066616
• Published date: 01 July 2022
• Date: 01 July 2022
• Subject Matter: Articles

Article

Journal of Conf‌lict Resolution

2022, Vol. 66(6) 1091–1118

© The Author(s) 2022

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/00220027211066616

journals.sagepub.com/home/jcr

The Logic of Transitional

Justice and State Repression:

The Effects of Human Rights

Prosecutions in Post-Conf‌lict

States

Risa Kitagawa

1

and Sam R. Bell

2



Abstract

Human rights prosecutions addressing wartime crimes are often credited with de-

terring future rights abuses, but routinely occur alongside state repression. This article

develops a theory of how such prosecutions generate uneven effects across domestic

human rights practice by making some repression tactics costlier than others—in the

public visibility of the abuse or ease of attribution to leadership—or by directly

substituting certain tactics. We test the implications with a multivariate probit analysis

of novel prosecution data in contemporary conf‌lict and post-conf‌lict settings. Trials

signif‌icantly reduce reliance on political imprisonment and extrajudicial killings, rela-

tively visible abuses, whereas gains for less visible physical integrity rights are limited.

Further, trials themselves are sometimes deployed as a direct substitute for political

imprisonment. The f‌indings reveal how human rights prosecutions themselves can be

part of a government’s repressive toolkit, with implications for the study of transitional

justice and the judicialization of repression.

Keywords

human rights, transitional justice, repression, war crimes tribunals, war crimes, internal

armed conf‌lict, courts

1

Department of Political Science and International Affairs Program, Northeastern University, Boston, MA,

USA

2

Department of Political Science, Kansas State University, Manhattan, KS, USA

Corresponding Author:

Risa Kitagawa, Department of Political Science, Northeastern University, 360 Huntington Ave, 960A

Renaissance Park, Boston, MA 02115-5005, USA

Email: r.kitagawa@northeastern.edu

How do human rights prosecutions affect strategies of state repression? Scholars and

policymakers often associate criminal prosecutions of perpetrators of gross human

rights violations with a state’s greater respect for human rights (e.g., Lutz and Sikkink

2001;Olsen, Payne, and Reiter 2010;Sikkink 2010;United Nations 2010). Yet in many

post-conf‌lict states, trials addressing wartime human rights abuses tend to coexis t with a

high degree of state repression. In Colombia, despite the Special Jurisdiction for Peace,

set up to address gross human rights violations committed during the 52-year-long

conf‌lict, paramilitary groups with close ties to the state have continued to commit

serious abuses (Human Rights Watch 2019). In Mali, killings, forced disappearances,

and torture by state security forces persist alongside trials of conf‌lict-era human rights

violations (Human Rights Watch 2014). Repression remains the norm in Guatemala

after two decades of transitional justice efforts addressing wartime atrocities (Amnesty

International 2017).

We offer an explanation for this apparent inconsistency between the occurrence of

human rights trials and the often widespread nature of state repression. We argue that

human rights prosecutions can have uneven effects across different types of human

rights abuses in a post-conf‌lict setting, by making certain types of abuses costlier for the

government to maintain or by directly substituting certain tactics. This approach stands

in contrast to existing scholarship on the impact of transitional justice on human rights,

which often overlooks the qualitative diversity among physical integrity rights abuses

by either treating them as a uniform failure (e.g., Kim and Sikkink 2010) or considering

specif‌ic types of violence such as conf‌lict-related killings (e.g., Jo and Simmons 2016;

Loyle and Binningsbø 2018) and criminal violence (e.g., Trejo, Albarrac´

ın, and

Tiscornia 2018) in isolation. These studies implicitly assume that criminal

accountability—and transitional justice more generally—promotes human rights as a

bundle, or that it affects certain types of rights without affecting others. But this

overlooks the possibility that justice efforts incentivize leaders to substitute one form of

repression with another, or to selectively improve respect for a particular class of rights.

To address this gap, we theorize potential mechanisms through which human rights

prosecutions—domestic criminal prosecutions of any human rights violation

committed during conf‌lict—affect government repression strategies in the post-

conf‌lict period. Trials addressing conf‌lict-era rights abuses attract signif‌icant public

attention to the government’s current behavior, raising the overall costs of engaging in

repression. We further argue that human rights prosecutions have varying effects on

different forms of repression by making specif‌ictactics costlier than others. Building on

a growing scholarship on the causes and effects of different forms of repression (e.g.,

Bell and Chernykh 2019;Davenport 2007;Fariss 2014;Frantz and Kendall-Taylor

2014;Payne and Abouharb 2016;Simmons and Creamer 2019;DeMeritt and Conrad

2019), we consider how the introduction of human rights prosecutions alters the relative

costs of repressive tactics along two possible dimensions: (1) the relative visibility of

different forms of abuses (visibility) and (2) the ease of attributing the abuse to

government leadership (attribution). We examine an additional related mechanism in

which (3) leaders use human rights prosecutions themselves as a direct substitute for

1092 Journal of Conf‌lict Resolution 66(6)