The Law of ‘Never Again’: Transitional Justice and the Transformation of the Norm of Non-Recurrence

Abstract

This article analyses the transformation of guarantees of non-recurrence (GNRs), the least developed pillar of transitional justice (TJ), and sets a legal and conceptual foundation of the norm for TJ theory and practice. It draws out key characteristics of GNRs including the norm’s various contents and contexts, stressing its exceptional future-oriented nature in international law. The article investigates conceptual origins of preventing non-recurrence in the early developments of TJ and the recent normative expansions undertaken by the UN Special Rapporteur. The main contributions of the article are establishing GNRs as normatively distinct in TJ and identifying transfers of local-level advocacy from Latin America to general norm creation. Finally, the article proposes a tension between decontextualizing the norm content to make it universally applicable and recent attempts to normatively expand the norm and improve its context-specificity, and discusses its potential consequences for TJ practice.