Perspectives on Transitional Justice
- laurenjavins8
- Dec 14, 2018
- 5 min read
You may have read recently that Kieu Samphan and Nuon Chea, leaders of the Khmer Rogue, have been charged with acts of genocide and grave crimes against humanity by the Extraordinary Chambers in the Courts of Cambodia (ECCC) on November 16, 2018. Their charges come nearly forty years after their involvement in the extermination of 1.7 million fellow Cambodians, Cham Muslims and Vietnamese – devastation that started in 1975 and ended in 1979.
These were monumental rulings for many victims who had been waiting years for justice. This case is also the most recent example of Transitional Justice at work.
To those who are unfamiliar with the term, Transitional Justice is the idea that societies can be repaired post atrocity by systems of accountability. The systems can be formal like court justice in Cambodia, or informal, like community tribunals in Rwanda. The precedent set by these trials can help in future court cases and bring more people to justice.
Transitional Justice ensures that not only are perpetrators held accountable for their actions, victims also have a voice throughout the painful process in the hopes that the trauma they suffered can heal. The goal is to reconcile parties to rebuild entire societies marred by violence and transition to new, just relationships.
You might wonder: “How can one court ruling, one judgement, bring closure to societies ripped apart by hatred?” For many victims who still suffer trauma, a trial proceeding can at least try to answer: “Who did this, and why?”
Transitional Justice is described much like a religious experience. Both the theory and practice have elements of compassion, empathy, communion, and justice within. Two of the main themes, though, are forgiveness and reconciliation.
Many practitioners believe that forgiveness is essential for Transitional Justice to work. Without it, many believe it is not possible to move beyond hatred and thus reconcile. However, I argue that forgiveness is not essential for Transitional Justice to work – I believe it is empathy that is essential for it to work, for both parties.
Many books on transitional Justice, like The Sunflower and The Drowned and the Saved (books written by Holocaust survivors, which I highly recommend) often talk about the limits of forgiveness, but also the limitlessness of empathy.
In The Drown and the Saved, the author Primo Levi recounts that being a Holocaust survivor meant that you accepted your capacity for evil. He recounts that most of those who ran the gas chambers were inmates themselves – who would get another liter of soup if they did their job, so that they could survive another day. He saw that humans were constantly in a moral grey zone when put into situations of extreme stress.
Looking back, he writes, “More often and more insistently as that time recedes, we are asked by the young who our ‘torturers’ were. Of what cloth were they made. The term torturers alludes to… the SS and it is in my opinion inappropriate: it brings to mind twisted individuals…. Instead, they were made from the same cloth as we, they were average human beings, averagely intelligent, averagely wicked…”(Levi, Primo. The Drowned and the Saved, pg 189).
Primo Levi, and other people who have experienced trauma, teach us to rethink the stereotypes we have of the enemy, the wholly incomprehensible “other." It behooves us to think, from our places far away from war and suffering, that the line between devil and angel is thin: that we all have the capacity to slip into a moral grey zone of the ethics necessary for survival.
While these facts do not expunge guilt from perpetrators, nor do they absolve them of crime, I think it could help people understand how mass atrocities happen, and how to stop them in the future.
It begins when people stop seeing people as people.
So do you, dear reader, think that forgiveness or even empathy is possible? And therefore, that reconciliation is possible between the wrong-doer and the wronged?
Experts like Valerie Rosoux feel that the term “reconciliation” is ultimately indecent. She says that, “The legitimate need to look forward at a collective level risks ostracising people who are permanently traumatized by the conflict…. These festering wounds—physical as well as mental—are at the origin of an intense hatred that must be taken seriously. I will always remember the eyes of a Colombian woman who tragically told me, ‘Don’t touch my hatred. That is the only thing that’s left. They took all I had—except for my hatred.’”
“Reconciliation” is a strange term for me, because it is based on the presumption that something was whole before it was broken. It intimates that society has to be restored to what it used to be, whatever that was. But as the Colombian woman intimated above, things can never go back to what they were, even if relationships were good.
If hatred is all that is left, is there a place to be reconciled to? When I think about the racial, class and political tensions in the United States, I think of the wounds created by the country’s founding, by slavery, the civil war, by the internment camps in the 1940s.
Based on the definitions, crimes against humanity and genocide has already taken place in America. People have been forcibly removed from their lands and there has been serious bodily or mental harm caused to members of the protected group (based on religion, ethnicity, or identity). People were (and it can still be argued still) seen as less than human.
There is still a need in America to acknowledge that harm was caused.
Even more important to Transitional Justice than forgiveness, empathy and reconciliation is that the past is not forgotten. Trials, memorials, and other mechanisms of Transitional Justice ensure that we do not forget that the atrocities happened at all.
This is why Yu Bin, a 63-year-old survivor of the Killing Fields decided to relive his traumatic experiences and add his name as a civil party during the Khmer Rouge trials. He doesn’t want people to forget. As Sven Akalaj aptly states in the epilogue to The Sunflower, “Forgetting the crimes would be worse than forgiving the criminal who seeks forgiveness, because forgetting the crimes devalues the humanity that perished in these atrocities” (Akalaj, Sven. Epilogue to The Sunflower by Simon Wiesenthal, pg 102).
To honor the past, there are plans for a new institute to be built in Cambodia to serve as a depository of records and as a research institute for the prevention of genocide. Along with the trials, these memorials acknowledge the pain and suffering of a generation of people who could have been forgotten.
True, Transitional Justice is a slow and gruesome process, and can take decades and generations for verdicts. It is also true that reliving past trauma can invite more pain and conflict for the victim. It is an imperfect science to atone for mass atrocity, genocide, and crimes against humanity.
But as my professor Charles Villa-Vicencio, former research director for the South African Truth and Reconciliation Committee (TRC), likes to say: At least it is something!
If you would like to learn more about what happened during the reign of the Khmer Rogue in Democratic State of Kampuchea, and how Cambodians are seeking to heal, click here.
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