Elite Behavior in Negative Cases of Transitional Justice: An Embedded Case Study

• In Event: Critical Approaches to Transitional Justice and Reconciliation

Abstract

From 1975 to 1978 Spain transitioned to democracy (1975-1978) following the death of military dictator Francisco Franco. However, unlike some of the other third-wave democracies (Huntington, 1991) (e.g., Greece, Portugal, Argentina, South Korea), which saw the implementation of transitional justice measures during democratization, Spain’s new democratic government provided amnesty to the members of Franco’s regime. This discrepancy raises the question: why did Spain’s new leaders eschew transitional justice?
Much of the transitional justice literature focuses on whether judicial redress fulfills its stated mandate, with scholars either arguing that it is essential for peacebuilding and strengthening democratic practices (Méndez, 2001; Minow, 2002; Hirsch, 2007), problematizing the application of transitional justice (Teitel, 2000), or maintaining it can hinder reconciliation altogether (Kaminski et al., 2006). However, relatively less has been written about when transitional justice occurs, especially in a global framework. One explanation, for negative cases of transitional justice, centers on “spoilers,” maintaining that in cases where addressing the past can lead to scapegoating, a society will prioritize peaceful transitions over justice, at the risk of reigniting conflict (Snyder & Vinjamuri, 2003; Cobban, 2006; Mendeloff, 2004; Kosvras 2012). Spoiler theory argues that in Spain, elites prioritized security and political stability over justice to avoid thwarting democratization. This points to a key variable in explaining why only some post- authoritarian societies carry out transitional justice: elite behavior. However, what do we make of spoiler logic in positive cases of transitional justice?


I conduct an embedded case analysis on transitional justice to provide insight into the processes that influenced elite decisions to ward off transitional justice in Spain. Using bargaining power amongst elites as my explanatory factor, I examine the historical mechanisms that influenced which regimes implement transitional justice. My study brings together academic literature and archival data from newspaper articles, legislation, parliamentary debates, and interviews with politicians. I hypothesize that whether a democratizing country experiences transitional justice depends on the bargaining power of the opposition vis a vis the incumbent (i.e., former authoritarian regime) leadership. Countries with opposition movements with greater bargaining power vis a vis the incumbent regime are more likely to implement transitional justice than oppositions with less bargaining power. Ultimately, the study of opposition movements and elite behavior in the context of transitional justice can inform our understanding of how to confront inequalities before the law among victims of human rights atrocities.

Author

• Jessica M. Walker