The Law, Politics and Practice of ‘Never Again’: Guarantees of Non-Recurrence in Transitional Justice

Abstract

Ensuring non-recurrence of mass human rights violations has been a central goal of transitional justice (TJ) since its foundations. Recent developments in international TJ policy have transformed the goal that violations should happen ‘Never Again’ into guarantees of non-recurrence (GNRs), a norm of legal origin. In TJ scholarship, GNRs have since emerged as both a pillar of TJ, comprised of distinct practices of predominantly institutional reform, and an overall objective that frames the pillars of TJ. As a result, GNRs remain ambiguous, normatively flexible, and generally unexplored in the burgeoning TJ scholarship. This thesis sets out to provide conceptual clarity to the content, characteristics and position of GNRs in transitional justice by empirically investigating conceptualisations and practices of GNRs in post-conflict Bosnia and Herzegovina (BiH). Underpinned by structuration theory, the thesis treats TJ as a primarily ideational structure, a global, discursive force that carries a set of well-established tenets prescribing how past violence and injustice should be dealt with and how non-recurrence should be achieved. The thesis examines two core questions. Firstly, how GNRs are understood and practiced by transitional justice actors in BiH and, secondly, how transitional justice as a structure influences these domestic conceptualisations and practices.
The overarching claim of the thesis is that GNRs should be understood as a complex cycle, a non-hierarchical web of connected and sequenced processes in continuous practitioners’ engagement with the ideas found within the structure of TJ as well as the effects of past implementations of these ideas. Three principal arguments support this claim. First, practitioners in BiH re-contextualise the content of the norm of non-recurrence and are only seldomly influenced by existing international legal and policy frameworks in how they conceptualise GNRs. Second, transitional justice maintains persuasive power to shape many ideas considered as GNRs by the practitioners and how they are put to practice. Third, the tension between TJ’s malleability and adherence to legalism creates practical obstacles for the practices of the contextualised GNRs due to which they remain largely under-realised in BiH.