Generations of Victim Engagement: Towards an Encompassing Analytical Framework for Understanding Victims’ Roles in Transitional Justice Processes

[Tine Destrooper is an associate professor of Human Rights and Transitional Justice at Ghent University’s Human Rights Centre, and the PI of the ERC-funded project Justice Visions (ERC-StG-VictPart-804151) and of the Special Research Fund-project Futureproofing Human Rights: Towards Thicker Forms of Accountability (iBOF/21/031).]

A lot has been written about victims’ roles in transitional justice processes. In fact, scholarship focusing on victim engagement in transitional justice has practically become a sub-field in and of itself. To date, however, an overarching analytical framework for understanding how victims’ diverse roles have evolved over time and across contexts is missing. This leaves scholars and practitioners working on this topic wanting for an encompassing model that could help frame their (empirical) observations. Such a framework is relevant to understand current evolutions in the practice of transitional justice, which is increasingly invoked by victims of a variety of injustices, leaving both practitioners, policymakers and scholars grappling with existential debates about the meaning of transitional justice itself and the role of victims in it. In this blogpost, I propose a generational model for understanding victim engagement in and around transitional justice process.

How Victims’ Roles Have Been Understood in TJ Scholarship and Practice

While there is not currently one encompassing paradigm regarding victim’s roles in transitional justice initiatives, two strands can broadly speaking be discerned within the practice and scholarship on this topic.

A first strand could be described as technical-legal in nature. It examines and evaluates the opportunities for, modalities of, and challenges related to victim participation institutional transitional justice processes. In doing so, this strand of writing – implicitly or explicitly – subscribes to the value of both formal transitional justice processes themselves, as well as to the importance of victim participation therein. Examples of this strand of writing are the work of Brianne McGonigle Leyh, Mariana Pena and Gaelle Carayon, Rudina Jasini and Victoria Phan, and Miracle Chinwenmeri Uche.

A second, and currently dominant, strand of literature on victims’ roles in transitional justice processes is rooted in critical transitional justice scholarship and practice. Scholars and practitioners in this paradigm tend to start from a critique of formal transitional justice mechanisms more generally, to then critically assess how victims are typically involved in these processes in what Bjorkdahl and Mannergren have referred to as the ‘add victims and stir’-way, whereby victims are ‘added’ but the institutions, discourses and practices do not change, nor is there a fundamental rethinking of how the institutions (should) operate. The al-Khatib trial, for example, has been critiqued for not offering translation or recordings, which hampered victims’, civil society’s and journalists’ access to the proceedings. Within this critical strand, we can find empirical studies (like those of de Waardt and Weber and McEvoy and McConnachie), as well as a number of theoretical, methodological, and normative propositions for scholarship and practice (such as the work of Eva Ottendoerfer, Simon Robins and Erik Wilson, or Thomas Bundschuh). What these scholars and practitioners have in common is their proposal for a more actor-oriented approach to victim engagement in transitional justice, which starts from victims’ needs and actions.

Despite the depth and breadth of this scholarship on victims’ roles in a diverse range of transitional justice processes, there is currently no encompassing framework for understanding how victims’ (envisioned) roles evolved over time or across contexts, how to understand the various trends that have characterized the field of scholarship and practice, what role victims themselves played in shaping these trends, and where we are heading next.

The latter question in particular is highly relevant for both victim groups themselves, as well as for practitioners and policymakers who are faced with an increasingly broad and diverse range of victim-driven justice initiatives that are developed under the banner of transitional justice. Not only is there a proliferation of such initiatives in practice, there is also a growing interest in them, both at an institutional level (e.g. the OHCHR or the Special Rapporteur on TJ), as well as among scholars, notably because of the ways in which they challenge the existing TJ paradigm. As a recent conference at NYU’s Law School, showed, also within the broader domain of human rights, practitioners, scholars and policymakers are urgently looking for ways to futureproof existing models, and are examining ways in which the day-to-day practices of grassroots actors seeking justice may be drivers of change. Below I propose an analytical framework that can facilitate conversations about these topics.

Generations of Victim Engagement with Transitional Justice

One risk of the absence of a shared analytical framework for assessing the various dimensions of victim participation is that of conceptual mismatch, which hampers the emergence of a shared understanding. For many critical transitional justice scholars, for example, the victim participation they critique refers to those avenues for participation provided by formal transitional justice institutions, whereas those actions victims undertake in the orbit of, or even far away from, the formal transitional justice process, will often be considered as something conceptually different from transitional justice. A lot has, for example, been written about the way in which criminal proceedings (for example at the ICC or in hybrid courts like the ECCC) have failed to meet the expectations or needs of victims), while the justice initiatives that victims (sometimes those who refuse to participate in formal proceedings) set up themselves are not necessarily analysed as instances of transitional justice.

In the framework I propose here, I argue in favour of a thicker understanding of victim participation, which I label as victim engagement. This framework is based on a historical perspective that allows us to arrive at a more encompassing outlook both on what transitional justice is, as well as on how victims’ roles in it have evolved, and how they have been foundational to the emergence of what today we call transitional justice.

I use the notion of generations of victim engagement to distinguish between various ways in which victims have been involved throughout the lifecycle of transitional justice. It is thereby important to underline that I do not consider these generations to be linear or successive in an absolute sense. While I use the notion as a heuristic device to trace how victims’ roles evolved over time, I acknowledge that at present, instances of each of these generations can be observed in practice. Furthermore, while I borrow the term ‘victim’ from mainstream transitional justice scholarship, my own work has revolved around the idea of ‘victims-as-protagonists’ as proposed by, for example, Juan Méndez or by Rosalina Tuyuc Velasquez during our recent conference on victims and transitional justice.

In the generational framework on victim engagement that I propose here, I defy the idea that transitional justice started when (inter)national institutions became active in this realm. Instead, I consider the starting point to be the activism of victims taking to the streets to know the fate of their missing loved ones and to demand accountability. This happened throughout Latin America, with the activism of the Madres y Abuelas de la Plaza de Mayo in Argentina probably being the first example that comes to most people’s minds. I refer to these victims/protagonists’ mobilization as the first generation of victims’ engagement in transitional justice. This emphasizes victims’ agenda-setting power and their foundational role in the emergence of what later came to be known as transitional justice.

The importance of the formalization and institutionalization of some of their demands and practice can hardly be overestimated. The official truth commissions, criminal proceedings, reparations programs and institutional reform that were installed in a number of cases across the globe (from South Africa to former Soviet states and from Chile to the Philippines) not only carried with them a promise of democratization, non-recurrence and sustainable peace, they also entailed a formal acknowledgement of the harm that had happened. At the same time, this move towards institutionalization and formalization initially side-lined and invisibilized victims, and even when avenues for their participation were developed in these formal mechanisms, this participation often failed to meet expectations of various actors involved. The iconic South African Truth and Reconciliation Commission, for example, despite its significant work to be victim-centred and to include victims in its proceedings, has been critiqued for being insufficiently inclusive, re-traumatizing victims, and failing to provide adequate support and reparations. This participation of victims in formal transitional justice processes can be referred to as the second generation of victim engagement in transitional justice.

Today, I argue, we can speak of a third generation of victim engagement in transitional justice. This new generation emerged partly in response to a new set of societal challenges (not limited to political transitions), partly in response to (the shortcomings of) the second generation of victim engagement. Across the globe, victims of a range of injustices are invoking, innovating and experimenting with the transitional justice paradigm, which gives rise to a transitional justice eco-system. We can see the language of transitional justice being mobilized in contexts of ongoing conflict (e.g. in the DRC), in struggles related to colonial legacies or slavery (e.g. in the United States or Canada), and in a broad range of justice struggles (e.g. to address the legacy of child abuse in the Catholic church). The actions of the grassroots justice actors’ driving this expansion of transitional justice to a broad range of contexts is similar to what I referred to as the protagonism and agenda-setting power of the first generation of transitional justice. They are different from it though, in the sense that the element of resistance has become front and centre, not just in terms of using transitional justice as a means to resist injustice itself, but also in terms of re-imagining victim engagement in transitional justice in ways that resist the injustice implicit in narrow and exclusionary understandings of what victim engagement in transitional justice may look like.

Victim Engagement in Intersecting Justice Struggles

Thinking of victim engagement in transitional justice in terms of generations, not as a matter of linear progress but as an analytical framework, has the potential to further a deeper insight into why and when certain kinds of engagement emerge and how they evolve. It does not brush over the co-existence of various types of engagement. There are, for example, no indications that victims’ active engagement in informal forums lessened when avenues for formal participation became available, neither has formal institutions focus on victim participation seemingly waned because of the current boom in transitional justice initiatives on the side of CSOs. A generational model explains why, at a certain point, the analytical focus shifted from one modality to another. It also allows for a closer examination of the dynamics and intersections between the various types of victim engagement that emerged over time. Such a model, moreover, helps to understand why, in spite of the booming critical transitional justice scholarships, the transitional justice paradigm is expanding, often to aparadigmatic contexts, and often at the initiative of victims/protagonists themselves.

Most importantly, identifying a third generation of victim engagement that revolves around the notion of resistance, helps us to see the intersection of various justice struggles in which victims/protagonists are typically involved. These intersecting justice struggles force us to acknowledge the increasingly porous borders between transitional justice and other justice struggles as well as victims/protagonists’ role in installing this diverse range of justice processes, typically following the occurrence of some form of large-scale violence. As researchers, policymakers and practitioners, further unpacking the dynamics of these intersecting justice struggles and the role of victims/protagonists therein, pushes us to think more about a number of topics, such as relationality, social repair, the role and politicization of (victim) identities, the co-existence of various agendas, practices, objectives, and even epistemologies, and the impact this has on how we do research and develop our own practice in this field.

In a forthcoming handbook, we will further explore the merit and pitfalls of this generational approach to re-imagine victim engagement in transitional justice in future-oriented ways that are most relevant for victims themselves, and that acknowledge both the co-existence of various generations of victim engagement, as well as the intersection of various justice struggles.