Victims as Protagonists in Transitional Justice

Abstract

The notion of ‘justice for victims’ of the most serious crimes has been at the center of the normative developments that we have come to know as transitional justice. Indeed, the social movements that were the engine for this prodigious change in social and state practices and later also in international standards succeeded initially in persuading larger circles of society, and eventually state institutions as well, that newly democratic dispensations could not ignore the plight of the victims of human rights crimes of the recent past. Human rights organizations pleaded to reject oblivion, false ‘reconciliation’ and forgiving and forgetting. Their stand soon became a forceful demand for affirmative measures to ensure that victims, survivors and their families would now be recognized as first-class citizens with specific rights and entitlements. Through decisions of domestic and international tribunals, those policy measures became recognized as treaty-based obligations that the state owes victims, summarized in the objectives of truth, justice, reparations and measures of nonrepetition. Victims and survivors were, of course, present and active at the outset of this remarkable movement. ‘Justice for victims’ might at first have given the impression that those who had been harmed by abuse of state power were to be passive recipients of the benefits of truth seeking, truth telling and reparations. In practice, however, victims and survivors became prominent protagonists of these exercises in public policy measures designed to infuse specific content to the promise that such crimes would ‘never again’ occur. It is for that reason that transitional justice today requires victims’ participation in the design and execution of all programs of truth telling and reparations, and not simply as witnesses or recipients of benefits. Indeed, victims’ active participation is also a requirement for justice in the form of prosecutions. In interpreting modern international law standards, authoritative organs of protection demand that domestic courts and codes of criminal procedure allow for victim participation in the investigation, prosecution and trial of international crimes. The same can be said about measures of nonrepetition: their success in ‘vetting’ institutions and excluding those in them who have abused their power depends to a large extent on the degree to which victims have a say in creating a fair and complete process, including the design of adequate horizontal and vertical controls over those institutions, as well as training and continuing education of their members.