Post-Conflict Justice: Building Meaningful Strategies
By Kirthi Jayakumar
Image: A priest from the Guatemalan Mayan community prepares to perform a traditional ritual at the archaeological park of Kaminaljuyu (Hill of the Dead in Quiche) in Guatemala City, 30 January 2008, in commemoration of the 1980 fiery assault by local security forces on the Spanish embassy that left 39 dead, including Nobel Peace Prize Winner Rigoberta Menchu's father. EITAN ABRAMOVICH/AFP/Getty Images
For sustainable peace and conflict transformation to take hold, justice for survivors of sexual violence is a must. Sexual and gender-based violence in contexts of armed conflict have devastating consequences for those that face it. From being ostracized in their societies to being vulnerable to more violence, from losing their means of livelihood to suffering setbacks to their health, the impacts are several. Justice, in such cases, must be done from end to end: from the outset where needs must be assessed to understand what survivors want and constituting measures that can provide to those needs, to setting up statutory and procedural mechanisms in place to set proceedings in motion, to making outreach and implementation possible. Sexual violence must be defined as part of the court’s jurisdiction and must not be added as an afterthought to prosecutions.
The first step in the process is to ensure accessibility of justice. Access to transitional justice mechanisms has generally remained limited. For instance, Aroussi (2018) drew from the DR Congo context and explained that long distances, the institutional and administrative obstacles, the official and unofficial costs and the corruption in the judicial system in the DRC kept survivors from accessing justice. Nowrojee (2012) spoke about the disconnect where survivors were not even informed of events that transpired at each stage of the proceedings and were oftentimes not in environments that felt safe for them to share their stories in court.
For transitional justice mechanisms to succeed, the foremost need is political will on part of prosecutors in charge of such mechanisms.
The lack of political will can culminate in frugal budgets, short-staffed investigation mechanisms, poorly trained investigators, provision of amnesty, and the lack of a cogent strategy to include and address sexual violence through indictments, among a range of other things (Nowrojee 2012; Goff 2002). Rather than use transitional justice as a strategy to protect partisan interests, or to entirely fail to pursue justice for sexual violence leaving a few cases like Akayesu as an exception in the ICTR (Nowrojee 2012), a leaf may be taken out of the Sierra Leonean context where political will as demonstrated by prosecutor David Crane, who worked with a small team of ten to not only bring charges, but also to fully prosecute sexual violence (Nowrojee 2012).
Justice must necessarily be built on the foundations of high-quality investigative work and well-documented evidence. Interviewing survivors of sexual violence requires sensitization and training, and the non-negotiable understanding that a survivor’s personal agency in deciding to testify or not is sublime (Nowrojee 2012). The “ultimate goal” of transitional justice is “to contribute to the transformation of the political subjectivity of victims in ways that enable them to engage as active citizens whose capacity to think, speak, act, and revolt is acknowledged and respected” (Madlingozi 2010: 209).
Testifying is not easy: and a judicial procedure that is built on the foundation of testimonies for prosecution must dedicate itself to being an enabling environment for survivors, victims, and witnesses to come forth (Nowrojee 2012). Secondary victimization is dangerous and safeguards must be installed to avoid it at all costs. Cross-examinations and disclosure of testifying victims’ identities to the accused form part of legal procedures per the rules of natural justice, but making all information available to witnesses, victims, and survivors to help them decide whether to testify or not is non-negotiable (Nowrojee 2012).
Through the process, outreach is important. An active approach of returning to the survivors and the community at large and making them aware of the stage of the proceedings is very important. There is a need to ensure transparency and a dedicated avoidance of treating those who testify as “blinkered horses” (Nowrojee 2012: 127). The case of Sierra Leone lends itself as another best practice here, where the prosecutor and an interpreter visited the local population to explain what the state of affairs was at each point in time (Nowrojee 2012).
Transitional justice must seek to offer comprehensive reparations to survivors of sexual violence. While transitional justice aims at bringing perpetrators to book, oftentimes, conditions of poverty and economic disadvantage motivates survivors to seek not justice, but economic remedies (Aroussi 2018), making it necessary to compensate them for the devastating consequences of the violence they faced through economic remedies and compensation for damages and lost opportunities through their lifetime (Mani 2008).
However, as reparative justice has been relied on in the past (Duggan and Abusharaf 2006; Rubio-Marin and de Greiff 2007), the focus has remained confined to reparations alone. While justice may look different for different individuals, at its base, acknowledging the truth is one of the “most straightforward” things that transitional justice can provide a survivor, for by “condemning, prosecuting, and convicting sexual violence crims, the crime committed” is “acknowledged and the silence is broken” (Nowrojee 2012: 112).
Reparations must have individual and societal dimensions, and the needs of redress, recognition and compensation should be contemplated together with larger political aims of social healing and national reconciliation (Rubio-Marin 2009), and this may require the “transformation of a pre-existing order” that systematically subordinated certain groups (Hamber 2006). Yazidi women are being forced to choose between the children fathered by ISIS fighters who enslaved them and returning home because these children are not welcome in the community (Straitstimes 2019). For LGBTQIA+ people, violent persecution by the ISIS was predated by structural violence. Any justice for these communities must also involve dismantling structures that were positioned against their interests.
Failures in enforcing decisions can create distrust in the judiciary. The execution of decisions is vital for justice to go beyond mere performance, but there may be challenges in the form of procedural delays, lack of resources, and corruption (Aroussi 2018). The non-execution of judicial decisions on account of corruption and/or the lack of implementation obstruct making justice meaningful.
Aroussi, S. (2018) Perceptions of Justice and Hierarchies of Rape: Rethinking Approaches to Sexual Violence in Eastern Congo from the Ground up. International Journal of Transitional Justice 12 (2), 277-295.
Duggan, C. and Abusharaf, A. (2006) ‘Reparation of Sexual Violence in Democratic Transitions: The Search for Gender Justice,’ in The Handbook of Reparations, ed. by de Greiff, P. New York: Oxford University Press.
Hamber, B. (2006) Narrowing the micro and macro: A psychological perspective on reparations in societies in transition. The handbook of reparations. Oxford: Oxford University Press.
Madlingozi, T. (2010) On transitional justice entrepreneurs and the production of victims. Journal of Human Rights Practice, 2 (2), 208-228.
Mani, R. (2008) Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development. International Journal of Transitional Justice 2(3), 256.
Nowrojee, B. (2012) ‘“Your Justice Is Too Slow”: Will the International Criminal Tribunal for Rwanda Fail Rwanda’s Rape Victims?’ In Gendered Peace ed. Pankhurst, D. London: Routledge.
Rubio-Marin, R. (2009) The Gender of Reparations : Unsettling Sexual Hierarchies while Redressing Human Rights Violations. Cambridge: Cambridge University Press.
Rubio-Marin, R. and de Greiff, P. (2007) Women and Reparations. International Journal of Transitional Justice 1 (3), 318–337.
Straitstimes (2019) ‘Agony of Yazidi women torn between kids fathered by ISIS fighters and returning home’ Straitstimes [online] available at https://www.straitstimes.com/world/middle-east/agony-of-yazidi-women-torn-between-kids-fathered-by-isis-fighters-or-return-home [25 July 2019].