lunes, 8 de febrero de 2010

The securitization of immigration: the case of Spain


This essay explains how immigration has become securitized in Spain and which measures have been taken for tackling the issue. The first part explains securitization. The second explicates how the issue was securitized in Spain, and the third part delves into the measures and processes taken by Spain at the different levels of governance.

I. The securitization of immigration

Securitization is a concept developed in the 90s by the so-called Copenhagen School by where it attempts to explain the adoption of a series of stringent measures in order to tackle an issue deemed risky to a given community through the employment of speech acts. A recurrent use of security language by certain prominent actors within a community helps to legitimize the advancement of managerial tools that in another context would have encountered a more arduous stance from different actors without the pervading impact of the speech acts (Neal 2009: 335). In other words, securitization can thus be described as a continuing discursive process whereby certain political agents frame an issue as posing a grave menace to the stability and integrity of a society which creates the conditions to adopt measures that prioritize security, a logical consequence of a process called securitization, over human rights issues. It is relevant to underscore the fact that in this situation the insistence is on political actors over others. This is not to deny the relevance that social actors can have in taking up with an issue and cautioning over its possible dangers and the insistence on adopting measures, but in all state structures, the political actors have a prominent role in the development of any sort of initiative as they are most likely embedded in the institutional structure of the state. As Neal notes “the capacity of the actor to securitize an issue effectively is an important consideration, as the actor needs sufficient institutional and political authority for their statements to contribute to the shaping of political and social relations” (Neal 2009: 335). The security discourse then must be appraised not only on the linguistic level but equally in conjunction with institutions.

Moreover, after an issue has been securitized through institutional practices, it creates its own development and could depart from the social and political origin of the securitization. To put it differently, once a matter has been securitized and established through institutional measures, it will generate its own logic and even if the matter has been desecuritized at the societal level, the embedded values will be reflected in the institutional practices. For instance, the issue of immigration will surely be treated differently if the matter falls under the Ministry of Home Affairs or Social Affairs. If immigration is treated principally by the Home Affairs departments it will be influenced by their institutional practices. In the case of the police, it is trained for analyzing the diverse policies as a matter of security problems and it will provide security solutions (Huysmans 2000: 757). This dynamic will persist even if the problem has been desecuritized at the political and societal level because of the institutional arrangements created and the inherent logic behind certain departments. Thus, securitization must be taken into account not only through the security speech acts laid down by political and societal actors and their consequential mobilization in favour of them but also through a myriad of procedures that internalize and operationalize the security logic (Bigo 2002: 65).

Now, in the area of immigration the securitization process has been construed as a collective enterprise and the identification of the society with the security policies (Díaz and Abad 2008: 141). Collective enterprise because immigration is presented as a danger that threatens the community as the entry of others alien to the society can weaken the distinctive traditions and the homogeneity. Here the border becomes the barrier by which the society can continue to exist as represented against the threat posed by the immigrants that can destabilize not only the community, as they are deemed cultural aliens that alter the myth of the homogenous political community (Huysmans 2000: 758) also the instability of the state itself as they are portrayed as a danger for the welfare state as immigrants are allegedly seen to be unfair users of the services (Huysmans 2000: 767; Sasse 2005: 678). In this context, immigration is described in terms that depict the issue as something negative that can cause potential harm. It is normal to tie immigration with words like invasion, tide or flows. It attempts in associating the phenomenon with something that cannot be stopped and that is negative for the developing of the community. Furthermore, immigration is not only linked with poverty or illegality, since 9/11 terrorism and its side effects are directly associated with the arrival of immigrant. To see them as potential threats until proven otherwise is the common attitude (Zapata-Barrero 2008: 117). Then the control of the border becomes essential as it defends a specific political community but also a barrier against terrorism, crimes, poverty or drugs, creating a security continuum, the defence of the internal from the external (Huysmans 2000: 760). As Bigo pinpoints “the issue was no longer, on the one hand, terrorism, drugs, crime, and on the other, rights of asylum and clandestine immigration, but they came to be treated together” (1994: 164 cited in Huysmans 2000: 760). As a result of the aforementioned, the securitization of immigration is twofold: through the use of security language in order to raise ‘awareness’ of the circumstance and with the implementation of security policies.

II. The securitization of immigration in Spain: the political and societal discourse

The securitization of immigration is directly affected, reproduced or modified, especially in a liberal democracy, by the reception of the speech acts by society as their acquiescence to adopt extraordinary measures, and Spain is no exception to that situation. In comparison with similar countries nearby, like France, Spain has only recently become a receiver of immigrants, while for a long time due to the economic situation of the country it was an exporter of immigrants. This is reflected in the fact that the first piece of legislation approved related to the issue was in 1985 with the LO 5/1985 and LO 7/1985 sobre derechos y libertades de los extranjeros en España, and only because it was imposed by the requirements of the European Community in order to accede to it, not for the proper existence of an immigration policy (Zapata-Barrero and De Witte 2007: 85). This situation would drastically change with the steady improvement of the country. The data shows how since 1997 Spain has become the EU member state that has most contributed to the migratory balance. In 2004, for instance, a 40% of the immigrants ended up in Spain (Sorroza 2007: 1). These reversals in conjunction with the increasingly speedy arrival of immigrants have provoked a reaction in the citizenry.

The principal source of information is the Barometers regularly polled by the Centro de Investigaciones Sociológicas (CIS) which since 2000 has included regularly the question of immigration within the range of matters that are perceived as the main problems of Spain (Zapata-Barrero 2009a: 1105-1106). The insertion of the issue in the questionnaire has to be linked to the government of that time, although for mere social circumstances the inclusion is valid because at that time the right-wing Partido Polular was in government (1996-2004) that created an atmosphere where immigration was connected to the negative public opinion (Zapata-Barrero 2009a: 1105). The Partido Popular has traditionally been the political actor arguing about the phenomenon in security terms. An example of this attitude appears in the parliamentarian discourse which claimed that certain groups of immigrants want to impose to the majority of the population a totalitarian or mutually exclusive project (Zapata-Barrero 2008: 125). This sort of discourse, which Zapata-Barrero has dubbed as re-active discourse in comparison with the pro-active discourse and normally espoused by the left – at least in the case of Spain, has modelled the perception of immigrants by the society[1]. Since its appearance from the first time in September 2000, immigration has been steadily perceived as one of the most pressing issues of Spain, becoming since October 2005 the third (Zapata-Barrero 2009a: 1106). Even more striking, there were a few instances in which the matter was considered as the most relevant problem in the country. What makes those cases interesting is the circumstance: that it was a reaction to certain situations and discourses that created a favourable framework in which to securitize the question and to adopt a myriad of policies. On September 2006, up to 59.2 per cent of the Spanish public said that immigration was the most relevant problem in Spain because of the arrival of a large influx of immigrants to the Canary Islands the prior months, reaching the huge number of 4.772 only on August[2]. The grave situation prompted the government to reach bilateral agreements with African countries, which will be explained below, and it pushed the EU for several measures that would crystallize in several joint border management operations (Carrera 2007: 12-13).

Nonetheless, a significant feature in the findings is that overall the Spanish society has an ambivalent relationship towards immigrants. What they perceive as negative is related to the level of entrance and the ‘supposed’ porosity of the border (Zapata-Barrero 2009a). The key issue in the successful securitization of border management in Spain has been the insistence of political actors through the use of speech acts in the perseverance on the importance of the frontier and its control. In a study of the questions posed by other political parties to the government in the Parliament, Sánchez Montijano has observed that the border issue has been asked about constantly since 1996, revolving the majority over governability and management issues (2008: 110). As the securitization theory predicted through the use of speech acts it has legitimized the immigrant question which has allowed to alter the citizens perceptions and equally allowed to decide on policies that otherwise would have been difficult to implement (Zapata-Barrero 2009b: 51). However, it must be highlighted that this process has not only been directed at the local and national level. Equally, the EU and the other member states have a bearing in this process with the implementation of security measures through the European institutions or through direct pressure. The latest large scale regularization process carried out by the Spanish government in 2005, which represented a clear pro-active measure, received a large amount of criticism and reactions from the European Union, which affected the perceptions of the Spanish public opinion in a negative manner (Zapata-Barrero 2009a: 1108).

III. The Securitization of Immigration in Spain: the security policies

Although difficult to conceptualize the policies carried out by Spain because of the multi-layered nature of immigration and its control as it is spread in several layers of governance, for a clarified assessment is it convenient to separate them to observe how the authorities have interacted with the different levels of governance.

III.1. National Level

The awareness of immigration as a problem that can create further difficulties because of a security-based conception is clearly perceived in the legislative area. Spain passed its first immigration law in 1985 as a requirement for acceding the European Communities. Until then, there was no attempt to regulate the flow of immigrants. This situation would remain stable up to the year 2000 where the centre-right government would modify it as more immigrants decided to stay in Spain. The surprising element that hints at the quick securitization process undertaken by the political actors is the successive enactments and modifications suffered by immigration law. While the parliament passed a fairly liberal immigration law based on a pro-active discourse of the issue, the Ley Orgánica 4/2000, de 11 de enero sobre Derecho y Libertades de los Extranjeros, widely known as Ley de Extranjería, it would be subsequently and swiftly overturned and remade with the Ley Orgánica 8/2000 which adopted a backwards legislation which stripped out many of the rights gained by the previous law (Zapata-Barrero 2009a: 1107). But this would not be the last alteration of the legal framework. Sooner than later the government, who had absolute majority at the parliament, made two new modifications: the LO 11/2003 that hardened the expulsion regime as it made easier to expel immigrants that have committed some infractions and the LO 14/2003 which added articles previously deemed unconstitutional by the Constitutional Court because they infringed the legality principle and to introduce the principles and decisions taken at the European Level, explicitly stating the necessity to adapt the national legal framework to the Schengen and Tampere processes respectively. This reality shows the impact of international institutions on the securitization process as the national legal order starts to internalize the security logic which will in the end percolate with the citizenry. The importance of this internalization and institutionalization of the security discourse in immigration must not be understated as even with a government tilted towards a human-rights discourse will not escape the security logic. The current centre-left government has proposed a general modification of immigration law. Although it purports a more benign approach towards the issue, it nevertheless reinforces the tools of control of entrance with the establishment of an informatics system while it expands the instruments of expulsion (Moya 2009: 19-20).

With regards to the measures implemented for managing and controlling the border, there are several. The most important at this level of governance is the Sistema Integrado de Vigilancia Exterior (SIVE), established in 1999 as a response to the continuous flow of immigrants through the Strait of Gibraltar from the African countries. The system comprises the installation of a series of technological advancements by for the detection of irregular activities close to the Spanish coast. Nowadays, there are six posts under this system, all of them places that receive immigrants for its geographical conditions like Fuerteventura, Andalucía, Murcia or Ceuta. Although it is stated that the main function is to clamp down human trafficking, in reality it is an instrument of protection of the internal borders as in the information provided by the Guardia Civil - the law enforcement agency in charge of the system - it is stated explicitly that it is also conceived against drug trafficking and as a means of protecting the European security (Guardia Civil: website). Likewise but not explicitly asserted this system can also work for the treatment of security issues related to border management like terrorism as it is under the Centro de Coordinación Regional de Canarias (CCRC), created by the Orden 3108/2006, a unique centre whose main purpose is to coordinate in a centralized fashion all the agencies, actors and systems that are in the border control issue. Among others the Exterior Service, law enforcement agencies or the customs police and it is in permanent contact with the Spanish intelligence service, the Foreign Affairs and the ‘Sea Horse’ satellite system implemented by the EU (Arteaga 2007). FRONTEX, which will be explained below, also works with the centre. The experience of working directly with border issues under the direction of the CCRC will help the institution to develop its own operational procedures for the protection of the border and to manage a myriad of actors acting in different levels as in this case local, regional, national and supranational organs are involved (Arteaga 2007: 5-6).

III.2. Bilateral Level

Although Spain has had a relevant impact on the communitarization of the European border as a direct consequence of the disappearance of the internal borders by the ratification of the Schengen Treaty, it has also undertaken several measures on its own for tackling the border control issue. The tightening of Ceuta y Melilla’s fence as result of a sudden increase of immigrants attempting to cross the fences surrounding both enclaves; the implementation of SIVE at the coasts of Andalucia and the renewal of the Readmission Agreement with Morocco forced the immigrants in 2005 to look for alternative routes, in this case from the African West Coast. From there the immigrants trying to arrive at the Canary Islands, reaching a record number in one month of 4.722 in August 2006 (Zapata & De Witte 2007: 87). Even though the problem is entirely transnational as it affected the European Union as a whole, as with Malta, Spain made a diplomatic offensive in this front. The Spanish government signed several bilateral treaties of migrant cooperation and re-admission with Nigeria and Guinea Bissau. It will be expanded with similar agreements with Senegal, Mali, Ghana, Cote d’Ivore, Cameroon, Guinea-Conakry and Gambia. These agreements simply give Spain a greater ability to devolve immigrants even from third countries to those countries that had also ratified the agreement. The most crucial feature is the sharing of immigration control between the signatories. The African countries are seen as co-participants in the management of borders, becoming Spain’s new frontiers, and ultimately of the European Union. The consideration for accepting their role as frontier guards is obtaining better resources, the development of development policies and a preferential treatment for their citizens (Asín Cabrera 2008: website). Likewise, the permanent flow of immigrants from the African West Coast to the Spanish coasts, however irregular their arrival, alongside the signing of these international treaties, convinced the Spanish government to develop a comprehensive strategy focusing on Africa as a whole, although focused more on those countries where immigration originates and on those of transit. The result was a wide-ranging policy named Plan Africa 2006-2008. The main objectives of the government are - because they are also present in its successor Plan Africa 2009-2012: the reinforcement of democracy, peace and security and to foster an inclusive immigration policy among others (MAE 2006: 30ff). The practical consequences have been a revamp of the Spanish diplomacy like opening new diplomatic posts. The latter are aimed at the support of the joint police control and naval patrolling operations in conjunction with countries like Senegal or Mauritania (Arteaga 2007: 4).

The main input of this international offensive is the creation of a link between the immigration policies to the exterior actions; the awareness of the importance of managing the exterior borders in order to manage the interiors. As Pinyol points out, the socialist government, as a response to an increasing phenomenon, has fully externalized the immigration policy (Pinyol i Jimenez 2008: 4). This process was started with the former centre-right government when it pushed for the communitarization of certain aspects of immigration in the 2002 European Council in Sevilla. On the whole, this provides a paradoxical situation: despite the fact that immigration requires a transnational and European response, the nation-state still has to manage the security issue with its own capabilities (Arteaga 2007: 4). With regards to Spain, its insistence on linking the external actions with immigration has played a relevant and influential role in the actions taken by the European Union (Pinyol i Jimenez 2008: 4), which at the same time has reinforced the mutual securitization process carried out by the political actors.

III.3 Multilateral Level

The principal outcome from the Spanish policies and actions at the European Union and towards the member states have been the establishment of a series of measures attempting to manage and control the border. The main purpose has been to underline the importance of the external borders of the EU after the disappearance of the internal borders. To realize what happens at the periphery of the Union can reverberate throughout the rest of the states. Thus, a state that has external borders cannot manage them alone; it needs the solidarity and assistance of the rest of states. An inclusive process that it is not only directed towards member states of the EU but equally those states of transit-immigration (Carrera 2007: 7-8). At a pure EU level, FRONTEX is the most visible case. FRONTEX is an European agency created by the Council Regulation (EC) 2007/2004 of 26th October 2004 and which has as its core mission the coordination of the external borders of the EU of those member states. Although in principle it was attempted to create a common European border police, the reticence of some member states forced the Commission to present an organ with a mixture of intergovernmental and supranational elements, in which member states would keep being responsible of their own borders (Neal 2009). One of the states that pushed further has been Spain and which has made extensive use of articles 7 and 8 of the Council Regulation which requires the formation of an inventory of all the capabilities available for the agency and the provision of support to any member state that in certain circumstances requires the assistance as its external border (Díaz and Abad 2008: 146; Carrera 2007: 20). The result has been the launching of three consecutive joint patrol missions – named HERA - in which several state members provided assistance and where FRONTEX played a relevant role in the coordination and management of the abovementioned operations (Carrera 2007: 20ff). Spain has also had a crucial role in pushing in favour of the approval of Council Regulation 863/2007 (EC) that establishes the Rapid Border Intervention Teams (RABIT) (Díaz and Abad 2008: 146). This Europeanisation of the external borders has allowed Spain to obtain financial resources for the improvement of the external border, being the member state with external border that has benefited most from (Ibidem; Zapata-Barrero 2009a: 1108). But the actions carried out by Spain have not stopped at the EU. Being aware of the importance of third countries in the control of immigration, it has promoted a series of multilateral meetings between the EU institutions, member states and third countries. Most notably the Euro Mediterranean Partnership Conference in Barcelona 2005, the EU-Africa Ministerial Conference on Migration and Development celebrated in Rabat in 2006, the informal meetings between the Mediterranean EU member states in Madrid 2006, the EuroMed Ministerial Conference on Migration in Algarve in 2007. Similarly, it has also participated actively in this area in the II EU-Africa Summit celebrated in Lisbon in 2007, the Barcelona process and the regular meetings held by the 5+5 Dialogue (Zapata-Barrero 2009c: 19; Zapata-Barrero 2009a: 1108; Zapata-Barrero & De Witte 2007: 89; Pinyol i Jimenez 2008: 3).

In general, all the aforementioned measures and policies carried out by Spain offers a complex image in which due to the transnational character of immigration and the inner developments of the EU has forced Spain to work in a multilayered governance framework. However, these measures must be reviewed critically as they poses normative questions affecting on the one hand the human rights of the (illegal) immigrants; especially when they are pre-emptively stopped at the countries of transit, even without reaching the proper EU borders. Another ethical issue is the pressure on states with dire economic and political situations to adopt some sort of security measures - in the eyes of the EU and Spain – for the control of immigration (Zapata-Barrero & De Witte 2007).

IV. Conclusion

Through use of the securitization theory and its main elements this essay has shown how immigration has become securitized in Spain through the impact of political actors in the perceptions of the Spanish public opinion. Noticeably this process has allowed the establishments of policies and tools to control immigration from a security logic percolating it through the institutions and founding a security inertia that even with the arrival of a government with a pro-active discourse has not been able to desecuritize and has kept the matter to a certain extent under the security dynamics. Finally, Spain has had an influential role in the Europeanization of immigration and in realizing the importance of the external borders to all member states and the necessity to have a collaborative effort as they represent not only the borders of the respective countries but of the EU as a whole.


Arteaga F., “Las operaciones de última generación”, RIE ARI 54/2007 (2007).

Asín Cabrera M.A., “Los acuerdos bilaterales suscritos por España en materia migratoria con países del continente africano”, 10 ReDCE (2008). Available at: (Checked: 13th January 2010).

Bigo D., “Security and immigration: towards a critique of the governmentality of unease”, 27 Alternatives: Global, Local, Political 63 (2002).

Carrera S. “The EU Border Management Strategy – FRONTEX and the Challenges of Irregular Immigration in the Canary Islands”, CEPS Working Document No. 261 (2007).

Díaz G. and G. Abad, “Migración y seguridad en España: Seguridad humana y el control de fronteras. El caso de FRONTEX”, UNISCI Discussion Papers, Nº17 (2008).

Guardia Civil, Sistema Integrado de Vigilancia Exterior (SIVE) – Introducción. Available at: (Checked: 13th January 2010).

Huysmans J., “The European Union and the Securitization of Migration”, 38:5 JCMS 751 (2000).

MAE, Plan Africa 2006-2008 (2006). Available at: (Checked: 13th January 2010).

- Plan Africa 2009-2012 (2009). Available at: (Checked: 13th January 2010).

Moya D., “La reforma de la Ley de Extranjería”, RIE Documento de Trabajo 20/2009 (2009).

Neal A.W., “Securitization and Risk at the EU Border: The Origins of FRONTEX”, 47:2 JCMS 333 (2009).

Pinyol i Jiménez G., “La política de inmigración española como un nuevo instrumento de acción exterior”, Observatori de Política Exterior Europea Nº 9 (2008).

Sánchez Montijano E., “La politización de la inmigración en España”, in: Zapata-Barrero R., E. González and E. Sánchez Montijano, El discurso político en torno a la inmigración en España y en la Unión Europea (2008).

Sasse G., “Securitization or Securing Rights? Exploring the Conceptual Foundations of Policies towards Minorities and Migrants in Europe”, 43:4 JCMS 673 (2005)

Sorroza A., “Inmigración y Unión Europea”, RIE ARI Nº 64 (2007).

Zapata-Barrero R. & N. De Witte, “The Spanish Governance of EU borders: Normative Questions”, 12:1 Mediterranean Politics 85 (2007).

Zapata-Barrero R., “La política del discurso sobre la inmigración en España”, in: Zapata-Barrero R., E. González and E. Sánchez Montijano, El discurso político en torno a la inmigración en España y en la Unión Europea (2008).

Zapata-Barrero R., “Policies and public opinion towards immigrants: the Spanish case”, 32:7 Ethnic and Racial Studies 1101 (2009a).

- Fundamentos de los discursos políticos en torno a la inmigración (2009b).

- “Political Discourses about Borders: On the Emergence of a European Political Community”, in: Lindahl H. (ed.), A Right to Inclusion and Exclusion? Normative Fault Lines of the EU’s Area of Freedom, Security and Justice (2009c).

[1] This is what Sasse has named as ‘security-based’ and ‘rights-based’ approaches to the matter (2005: 678).

[2] The crisis was presented as “an unprecedented humanitarian crisis in the whole Europe” and as “a massive invasión of illegal immigrants” (quoted in Carrera 2007: 12).

viernes, 13 de noviembre de 2009

Due Process in the Context of Transitional Justice

Transitional justice has only recently become a field of its own. Despite the novice character of the field, it has expanded in an increasingly larger area in which a plurality of actors is in constant participation. In the same vein, transitional justice comprises an intricacy of elements that are closely intertwined: political, societal and legal. To analyze them in their entirety would be a herculean task that would go beyond the purpose of this essay. The purpose is to inquire in a specific facet within the normative framework and which reverberates across the aims of transitional justice. The right to due process is a central tenet of the rule of law and of any Western democracy, in particular of the liberal character. Its importance is evidenced by the fact that it is enshrined by the most relevant human rights treaties including the International Covenant on Civil and Political Rights (ICCP) specifically in its Article 14, among others. Nonetheless, it is posited that in times of transitional justice the right to due process must be interpreted according to the exceptional circumstances in which the trial is being carried out. The burden that complying carries regularly with the requisites of due process during ordinary times can, rightly so, impair a correct healing of a given society under a period of transitional justice. Thus, a plausible response to the dilemmas posed by that is to establish a lower threshold or the employ of alternate methods. Part I roughly analyzes the concept of transitional justice. For a correct understanding of the conditions surrounding the right to due process, it is essential to put in proper context what constitutes transitional justice and its objectives. Part II consists of two sections, a first one dedicated to developing a brief overview of the rule of law and the second one drawing the contours of the right to due process. Part III studies the problems with the right to due process related to a transitional justice background. Part IV is none other than the conclusion.

I. What ‘transitional’? What ‘justice’?

The fact that transitional justice is constantly evolving as a maturing field – and as a buzzword – does not exactly spell out to what it is referring to. The notion of transitional evokes a movement from one state to the other. But at the same time it conveys the assumption that a society is stalled in a particular moment and now is moving elsewhere. This is misleading. Several scholars have pointed out the deceptiveness of such thoughts. Any society is in continuous transformation, it is in transitional condition as it never stays the same[1]. It is irrelevant if these changes are for better or for worse, the fact is that no society is frozen within a certain setting. Hence the lack of clarity to what the transitional is related to.

The concept of justice equally suffers of an even bigger definitional problematic. It is one of the main philosophical and moral ideas of humankind and for that reason there have been bitter arguments over its content and delimitations.

Nonetheless, taken together transitional justice has an explicit content and it is circumscribed to a certain state of affairs. Transitional refers only to those societies changing to a liberal democracy direction after a period of authoritarianism. Justice has too specific a meaning. The UN contributes a concept of justice closely connected to the abovementioned definition of transitional justice. For the Organization, justice is

an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant[2].

Then, transitional justice can be defined as “a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse”[3].

What is occasionally omitted by certain authors is a description of the surroundings on which transitional justice happens, details that influence the possibilities of a successful process. These countries do not only come from a situation of moral bankruptcy and more often than not with the large shadow of the former regime hovering above them but also from a dire economic situation: rampant corruption, lack of resources, shabby infrastructure, and so forth. All these make the process harder as hard choices have to be made that can hamper the purposes of transitional justice[4]. Similarly, these purposes encompass “a multitude of discrete, though overlapping, and often conflicting themes”[5]. Clark has at least found six objectives; all of them interrelated to greater or lesser extent: reconciliation, peace, justice, healing, forgiveness and truth[6]. It is beyond this essay to divulge them but it is worth indicating that the right to due process for those people in charge of or responsible for gross violations of human rights have an effect on all of them. They are intertwined. There is no peace if there is no justice and justice is necessary for achieving the truth and subsequently to heal the wounds so there can be forgiveness and reconciliation. Before delving into the right to due process, it requires a step back. One central aspiration of transitional justice is to restore the rule of law. And because due process is subsumed in the rule of law, it is a precondition to analyze it before delving into due process.

II. The rule of law and its meaning in regards with the right to due process.

The rule of law is surrounded by the same uncertainties concerning transitional justice. Whereas transitional justice is at least confined to a particular situation in order to give it a workable meaning, the rule of law has varied faces and at the same time the existing different legal traditions put the accent over one trait upon another. In this regards, it is worth noting that many authors have done the enormous task of coming with a definition and with an explanation on what it consist of. Unfortunately, this would go well beyond this essay. However, despite the enormity of the rule of law, it is possible to locate certain characteristics that shed light over its importance and how crucial it is for countries that just came out from a long history of abuses to have it.

What underpins the rule of law is the idea of limitation. The rule of law came into being predominantly during the advent of liberal democracies during the eighteenth and nineteenth centuries. It is a barrier against untamed power. Under its premise, society must be a rule-governed enterprise. Power ought to be channelled through rules and norms. There cannot be arbitrariness or abuse of power. Thus, it has a positive and negative mandate. It establishes how a government must exercise its authority; how it should restrain its dominance through predictability and certainty. At the very same time, as a corollary of the concept, it promotes certain rights indispensable for a correct functioning under the rule of law.

Among those rights benefitting individuals, it comprises the right to a due process. It is not included in the basic core of human rights, but it illustrates splendidly how the rule of law operates. Due process is simultaneously a limit to power and a guarantee for the individual. For practical reasons of time and space, the right to due process used in this essay is taken from the Spanish Constitution. The choice of this text is due to the fact that its redaction was heavily influenced by the several human rights covenants existing at the moment of its enactment. Article 24.2 asserts that anyone has the right to a judge predetermined by law, the defence and assistance by a lawyer, to be informed of any charge against him, to a public process without unlawful delay and with all guarantees, to use any piece of evidence necessary for the defence, to not declare against oneself, to not confess guilt and to be innocent until proven guilty. The scope of the entitlement plainly reduces the government’s space in manoeuvring, and imposes a pro-active duty to demonstrate that someone is guilty. Consequently, “due process is designed in part to protect the innocent from punishment and prevent excessive punishment of the less guilty. But due process is also what gives legitimacy to trials and convictions”[7]. Under normal circumstances of a democracy running its usual course, due process reflects the respect for human rights and of a functioning democracy. It is true that it makes it harder to punish a criminal but it similarly permits the innocent to present their case fairly and to avoid an unwarranted sentence. Unfortunately, this presupposes a stringent and expanded interpretation of due process, something that can oddly enough affect negatively a society in transitional justice phase.

III. The conflictive nature of due process when applied during transitional justice.

Transitional justice refers to an extraordinary moment of any given society. This exceptionality is derived from the circumstance that the society is attempting to cut ties with the former regime so it can begin with a new liberal democratic society. It is backward-looking and forward-looking at the same time. It is a paradoxical situation where institutions are set up but are concurrently in a sui generis status. Take for instance the use of legal instruments which are according to Teitel

between the past and the future…between retrospective and prospective. Transitions imply paradigm shifts in the conception of justice; thus, law’s function is inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation[8].

However transformative legal instruments can be, not all are equally effective. Part of them can obstruct the restorative process. This inadequacy stems from the uniqueness of the period encompassing transitional justice. During this process a society is not only recovering from ordinary crimes, but from exceptional crimes as well. In the former state of affairs, a society was massively affected by gross violations of human rights. The state is frequently the main culprit as those committing and planning the wrongdoings are part of or are aided by the state. It could be a whole society – e.g. the Nazi Germany against the Jews – or one part of the society against other – e.g. Rwanda – or perhaps the suffering was inflicted mainly upon a minority – e.g. Muslims in Bosnia. What characterizes this situation is the active participation of a great segment of the fabric of the society in continuously abusing a relevant portion of the population. An involvement of this magnitude supersedes those legal responses that underline the rule of law in ordinary times. Equally, the other outcome is the presence of a whole social stratus being affected by the perpetrators. A massive crime generates massive suffering. It comes to no surprise that those who have endured exceptional pain (morally and physically) demand recognition of their suffering during transitional period: an acknowledgement of the negative experiences that disturbed their social condition during the former regime, as individuals but also as a collective[9]. Here enter the demands of justice. If there is no treatment of the gross violations committed during the former regime, there is no chance of reconciliation and the chance of moving forward because the wounds of the past haunt them. The exceptionality of the situation creates a requirement of a contextual justice especially elaborated during the transitional period. “What is deemed just is contingent and informed by prior injustice… legacies of injustice have a bearing on what is deemed transformative”[10]. In this context, the concept of justice shoulders a great importance because it directly leads to dealing with past injustices. As Stahn asserts, there is an intimate relationship between “restoration of justice and security in post-conflict situations”[11]. A failure in bridging the past atrocities with the establishment of a healthy society can lead to the reversal of the transitional justice, but by another collective. To bring justice is to choose one model depending on how backward or forward-looking it is: retributive, deterrent and restorative[12]. Irrespective to which model one leans to, there is a common attribute: prosecution of the perpetrators; normally through trials. And that is where due process comes into action. While it is true that there are other means of punishment, it has generally been understood as a necessary element of any transitional justice to process the prosecution of those responsible for egregious violation of human rights[13] bearing in mind the impact of an existing possibility of duty under international law to prosecute[14].

To begin with, prosecution of criminals through criminal law entails the assumption of individual, criminal liability. This is problematic. Under due process, anyone accused of wrongdoing must be proven guilty beyond certainty. That imposes an extra burden for instance in cases where the prosecuted formed part of the machinery of the state where the responsibility can be diluted except in case of top leadership. To punish them according to a strict understanding of due process could be equated to punishing under criminal law for political liability, eventually challenging the rule of law[15]. Equally, the evidences enough for proving an accused guilty are stringent. A lack of sufficient evidence along with the high threshold of the evidentiary requirements “of due process may make it not only generally more difficult to convict, but also particularly difficult to convict those who are most culpable”[16] because they were in a position to take advantage of the resources available, they could get rid of the evidences and because of their political position. By the same token, to make a veritable case against the perpetrator and demonstrating that he was guilty in taking part of the crime beyond reasonable doubt, is expensive[17]. Each trial requires time and resources to convincingly attribute the offence to someone that can be quite an issue in underdeveloped countries that are forced to spend their scarce resources on the trial of criminals while the victims of the atrocities are victimized for a second time as their basic needs are not fulfilled. Even more damaging, the scarceness of resources together with the lack of evidences and the requirements of due process force the prosecutors to be selective in their efforts. The mass character of the crimes does not help either. This puts the prosecutors in the dilemma against whom to press charges. The upshot is twofold: on the one hand, not all victims will be satisfied as not everyone who tortured, raped or murdered will be judged. On the other hand, the most culpable will not be targeted because those lower-level offenders are easier to prosecute under due process requisites[18]. In a similar stance, Kritz adds the political prism as he writes that “prosecution of every single participant in the planning, ordering or implementation of the atrocities in question – not to mention all those who collaborated with them – would be politically destabilizing, socially divisive, and logistically and economically untenable”[19]. The phenomena of “limited criminal sanction” come then to no surprise. This concept is espoused by Teitel, to whom this

constitutes compromised prosecution processes that do not necessarily culminate in full punishment…Depending on just how limited the process, investigations may or may not lead to indictments, adjudication, and conviction. Convictions are often followed by little or no punishment. In transition, the criminal sanction may be limited to an investigation establishing wrongdoing[20].

She ascribes this situation to the difficulties in subsuming systemic wrongdoings during the former regime in individual criminal liability. In other words, that the limited criminal liability is based on a thorough understanding of the complexities of crimes of a mass scale[21]. Although it is a valid assertion, the influence of due process in conjunction with the dire economic situation of a country in transitional justice also cannot be discarded.

Another inconvenience is the search of truth of past egregious violations. A trial’s primary role is in elucidating the defendant’s guilt. This is a direct consequence of due process demands of knowing under what charges one is being prosecuted. This restricts the story to the specific accusation brought up by the prosecutor. Truth then becomes a legal truth which covers only a small proportion of the narrative. Evidences that would aid in construing the story of past abuses are not deemed relevant if they are not related to the charges. They are discarded and not included in the discourse. Needless to say, this affects the victims as there is no space for expressing the abuses committed to them.

Last but not least, the turn to a legal response for former abuses has the drawback of the accused taking advantage of the process, and subverting further the right to due process[22].

IV. Conclusion

This essay noticeably exhibits the inconveniences of using a guarantee designed for ordinary times and essential in democracy as due process in extraordinary times and its inadequacy when coping with mass crimes where the state as a whole or a relevant part of the community has participated in their commission. If prosecution remains as one of the primary tools as a response in transitional justice, it is advocated a sui generis reading of due process. This is not tantamount to a complete disrespect of the human right, but an attempt to take victims into consideration. Based on Teitel’s, it is submitted that this distinctive reading does not endanger the foundations of the newly liberal democracy because, as its name suggests, transitional justice refers to a specific moment. A community is trapped between two regimes, thus the transitional period is by definition limited, which gives rise to a contextual notion of justice based on past grievances but with the purpose of remedying the victims[23].

[1] M. Freeman and D. Djuckic, “Just Post Bellum and Transitional Justice” in C. Stahn & J.K. Kleffner (eds.), Just Post Bellum – Towards a Law of Transition from Conflict to Peace 213, 214 (2008).

[2] UN Doc. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary General, 4 (2004).

[3] Definition given by the International Center for Transitional Justice. Available at (last time checked on 20th October 2009).

[4] See S.W. Daniel Han, “Transitional Justice: When Justice Strikes Back-Case Studies of Delayed Justice in Argentina and South Korea”, 30 Hous. J. Int’l L. 653, who argues in favour of delayed transitional justice, giving priority first for the economic development of the country.

[5] P. Clark, “Establishing a Conceptual Framework: Six Keys Transitional Justice Themes” in P. Clark and Z.D. Kaufman (eds.), After Genocide – Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond 191, 191 (2008).

[6] Id., 195-204.

[7] M.J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice”, 15 Harv. Hum. Rts. J. 39, 49 (2002).

[8] R. Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, 106 Yale L.J. 2009, 2014 (1996-1997).

[9] F. Hadelmann, “Another Kind of Justice: Transitional Justice as Recognition”, 41 Cornell Int’l L.J. 675, 678-680 (2008).

[10] Teitel, op. cit., 2014.

[11] C. Stahn, “Justice Under Transitional Administration: Contours and Critique of a Paradigm”, 27 Hous. J. Int’l L. 311, 315 (2004-2005).

[12] See Clark, op. cit., 197-198.

[13] See R. Teitel, “Transitional Justice Genealogy”, 16 Harv. Hum. Rts. J. 69, 72-74 (2003).

[14] See D.F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime”, 100 Yale L.J. 2537 (1990-1991).

[15] Teitel, op. cit., 2038.

[16] Aukerman, op. cit., 51.

[17] Id. 52.

[18] Id. 61.

[19] N.J. Kritz, “Coming to Terms with Atrocities: A Review of Accountability for Mass Violations of Human Rights”, 59 L.& Cont. Prob. 127, 138-139 (1996).

[20] R. Teitel, “Transitional Rule of Law” in A. Czarnota, M. Krygier and W. Sadurski (eds.), Rethinking the Rule of Law after Communism 279, 281 (2005).

[21] Id. 282-283.

[22] Teitel, op. cit., 848.

[23] Teitel, op. cit., 2013-2014, 2019-2020.