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In the mid- to late-1980s, the discourse of transitional justice was shaped above all by the experience of countries in Latin America, where military forces continued to exercise autonomous power even after ceding formal authority to democratically elected governments. In this setting, while human rights professionals agreed that fledgling democracies should undertake prosecutions in accordance with their international legal obligations, they were divided over the question of whether further development of international obligations in respect of punishment was desirable. Nor was it clear what, precisely, international law already required. Writing in the early 1990s, the author of this essay concluded that States parties to certain international treaties were in general required to prosecute specific crimes. More generally, she argued, wholesale impunity for atrocious crimes was generally incompatible with States’ responsibility to ensure that individuals subject to their power enjoyed fundamental rights. But these duties, she wrote, should not be interpreted to require action incompatible with a nascent democracy's political or legal capacity. In this essay, the author describes how her views have evolved in the past 15 years. Noting that international legal norms against impunity have grown increasingly strong and arguing that this trend has itself proved a powerful antidote to impunity, the author nonetheless affirms ‘the central importance of promoting the broad participation of victims and other citizens in the process of designing as well as implementing programmes of transitional justice’ and addresses the inherent tension between these values and norms.

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