Transitional justice aims at providing mechanisms to deal with past atrocities and pave the way for building a society based on peace and justice. Reflecting insights from victimology, Dr Terry Savage however believes that transitional justice measures often miss the needs of victims and fail to provide justice for them. But how should transitional justice processes be dealt with in order to be truly victim-oriented?
Transitional justice is a misnomer. The activities that in the early 1990s were clustered under this rubric were initially driven by the demands of families in Latin America for information about loved ones “disappeared” by state forces. Their demands drew response in the form of policy compromises, formulated in newly restored democracies in which widespread, systemic violence had grossly undermined hopes of justice in a courtroom.[i] The innovation that produced these compromises was designed to respond to the worst violence, embodied in the ongoing plight of victims of gross violation, while also preserving the stability needed for transition.
The bleak prospects for criminal justice in these fragile transitions were typically the result of amnesties, judiciaries eroded by the conflict or emasculated by political interference, threats of violent backlash by military forces, or the sheer scale of demand ensuing from the number of violations. Often it was a toxic combination of all the above. And as much as justice was unlikely, transition too was hardly assured.
Any society emerging from violent conflict needs to find a vision that enables it to look forward. Yet transforming society is a perilous undertaking. Communities impoverished by war may find they are now further exposed to violational acts because their neighbourhood no longer has street lighting, or their home a robust door. Violence exacerbates the conditions that enable violation.
Moreover, among the citizenry will be many whose present lives hold a connection to specific violational acts – from “inactive bystanders” [ii] to individuals who exploited the violence and are now hellbent on preventing exposure. Skulking in the shadows of the past will also be perpetrators who, “in blood steeped so far,” [iii] have honed their abilities to deny all.
In such settings, the victims of gross violation may be made to feel like a tiresome inconvenience. Belligerents often depict suffering as a casus belli, yet victims’ mere presence may become a liability to political elites emerging from the conflict, a living symbol of justice denied. To beneficiaries of the violence, in turn, victims constitute a threat of exposure. To bystanders, a reminder of abject failure. To perpetrators, a potential accuser in a court of law. And to the broader public, victims embody a violent nightmare everyone is trying to shake off.
Yet victims remain trapped within that nightmare, reliving it amid many reminders of the damage done: the empty seat at the table of a loved one disappeared, or the father’s hand no longer on his daughter’s shoulder, encouraging her with her schoolwork; the spasms of panic long after a sexualized assault; the self-deprecation that ensues from torture’s indignities. “When a tree is chopped down, the axe forgets but the tree cannot for it still bears the scars.”[iv]
The compromises called “transitional justice” were the product of fledgling democracies, crippled by diminished judicial options but responsive – as a matter of political survival – to the grief and social complexity ensuing from violations. Among these compromises were truth commissions, reparations packages, and measures for reforming public instructions.
Transitional justice has altered much since these early years, nourished by growing expertise in all its aspects. Ironically, among these developments has been a reversion to criminal justice that, some argue, effectively sidelines victims’ needs,[v] subsuming them in a prosecutorial agenda that, in criminologist Nils Christie’s words, sees conflicts as “property”[vi] that may be appropriated and traded for personal benefit.
Obviously, the exercise of criminal justice is crucial for restoring the rule of law after mass violence. Yet, even in settings where a criminal justice system is functional, impartial and still standing, it is often frustrating for victims. The damage wreaked by violations is complex, yet the mandate and capacity of courtroom proceedings are designed around a singular goal: to establish culpability. The focus is firmly on the alleged wrongdoer – not on the anguished needs of those who have taken the brunt of the wrong done.
As transitional justice grows and mutates, victims risk finding the justice they are served unsatisfying - and the much touted transition merely another round of violence. Yet between the societal imperatives of justice and transition, middle paths are again emerging, now chiefly in the restorative justice community, that explore ways of embracing the needs produced by a violational act – from tackling damage felt in victims’ everyday lives through to exploring options for meaningful apology from bystanders and even perpetrators. And in this development, enabling agency among victims is central: it begins with learning again to listen, with due reverence, to the sacred life still surging in the chopped tree.
This article is based on an earlier version published by Dr Terry Savage in Remarker.
[i] Park, Y. (2010, Winter). Truth as justice: Legal and extralegal development of the right to
truth. Harvard International Review, 31(4), 24–27.
[ii] Jaspers, K. (2000). The question of German guilt. (E. B. Ashton, Trans.). (Original work published in German as Die Schuldfrage in 1947). New York: Fordham University; p. 111.
[iii] Shakespeare, Macbeth, 2010, III.I.
[iv] A Shona aphorism, from Zimbabwe.
[v] Robins, S. (2011). “Towards victim-centred transitional justice: Understanding the needs of families of the disappeared in postconflict Nepal”. International Journal of Transitional Justice, 5(1), 75–98. And Robins, S. (2013). “Toward victim-centered transitional justice: Nepal and Timor-Leste”. Middle East Institute: Middle East-Asia Project (MAP).
[vi] Christie, N. (1977). Conflicts as property. The British Journal of Criminology, 17(1), 1–15.