Toward Victim-centered Transitional Justice: Nepal and Timor-Leste

This essay is part of the Middle East-Asia Project (MAP) series on “Pathways to Transitional Justice in the Arab World — Reflections on the Asia Pacific Experience.” The series explores the pursuit of transitional justice in the post-Arab Spring Middle East, and how such efforts could be informed by past and ongoing justice processes in Asia-Pacific countries. See Resources …

The first decade of the twenty-first century has been characterized by the emergence of a new politics of human rights that has become the defining agenda of much national and international politics. This universalist discourse of rights has gained unprecedented leverage in global debate, propelled by narratives that rarely pause to question the evidence or ideology that underlies it. This is nowhere more true than in the practice of human rights after conflict or political violence, in which transitional justice has become a dominant approach to addressing legacies of violations, backed by an industry of practitioners and donors.

This piece aims to explore the impacts of this transnational discourse on those most affected by the violations and how this emergent global human rights culture operates in highly unequal societies emerging from conflict. By focusing on a particular set of victims, the families of those disappeared and missing, this study aims to understand how transitional justice impacts the everyday lives of those attempting to recover from conflict. This necessarily challenges understandings that claim to be universally relevant to the local and the particular, with the well-being of victims and the addressing of victim needs serving as the ultimate arbiters of the success of such a process. It constitutes an effort to counter the global prescription of transitional justice with an evidence base that can drive a victim-centered approach to addressing legacies of violations.

Here, studies are summarized in two post-conflict contexts: Nepal, where the transitional justice process has yet to unfold on any scale, and Timor-Leste, where it is considered largely complete, despite its apparent failure to support a sustainable peace. Both contexts are states with dispersed rural and agricultural populations of great ethnic diversity emerging from conflicts driven by alienation from their rulers. At the time of the research they had almost identical per capita GDP,[1] representing some of the poorest states in Asia. The sampling frames used were lists of persons missing[2] as a result of the conflicts and collected by the International Committee of the Red Cross (ICRC), from which respondents were randomly selected. Families of the missing were interviewed using a semi-structured approach driven by a qualitative questionnaire that had been developed iteratively through contact with victims and victims’ groups.

Needs of Families of the Missing

Whilst human rights professionals seek to frame responses to violations in terms of rights, in both Timor and Nepal most victims, dominated as they are by the rural, poor, and illiterate, know little or nothing of rights. Instead, they articulate needs, often urgent needs with which they are confronted on a daily basis.

We hear people on the radio talking about these things. But nobody has come and told us about our rights. We don’t have any concept of human rights. (Wife of missing man, Rolpa, Nepal, 11.06.08)

The priorities of victim families emerged from an initial open question, with dominant needs being those for economic support, truth about the fate and access to the body of the missing, and recognition in terms of an acknowledgment from the authorities of what happened. There is a significant difference in needs expressed by families in the capitals and those in rural areas: in Timor-Leste almost three times as many families outside Dili as in the capital prioritized economic needs, while ten times as many in Kathmandu expressed a need for prosecutions as in the rural district of Bardiya. The data demonstrate that even within a state needs are highly local, being strongly mediated by economic circumstance, education, and degree of marginalization: the normative discourse of transitional justice, emphasizing the legal, is most divergent from the opinions of the poorest and most marginalized.

The need expressed by the greatest number of families was for economic support, as many families, having lost breadwinners, are confronted with the daily struggle to afford to send children to school and to feed themselves. Victims living in poverty confirm the need for a positive peace that emphasizes livelihood and development. Such a peace also entails not a return to the structural violence of the past but a transformative process that challenges the violence of many social relations and the social exclusion of, for example, the indigenous people of Nepal. The normatively driven global emphasis on accountability is not shared by victims; when asked explicitly about the need for prosecutions, only a minority in Timor sought them, and in Nepal a bare majority understands justice as meaning prosecutions. Rather, justice was seen as receiving compensation or other acknowledgement from the state, or an answer about the fate of the missing. Similarly, none of the respondents articulated a need for reconciliation, which has driven the concept of the truth commission as a response to violent pasts.

Psychosocial impacts were seen to range from disabling mental illness to a far broader stigmatization of family and community. Since almost all the missing are men, most of those left behind are women, who face challenges arising from the patriarchal structure of their societies and dominant attitudes within them. Both family and community resent the fact that wives do not dress or behave as expected as widows, since many refuse to accept their husbands as dead. The wives of the missing are thus subject to discrimination and stigma, which demonstrates how the impact of violations arises from the nature of the societies in which victims live. These societal characteristics drive women’s demands that approaches to the violence of the past must also seek to transform the social hierarchies that increase the impact of the violence. The need for an answer about the fate of the missing can be understood through the impact of ambiguous loss; when an answer is unlikely to come, intervention should seek to increase the well-being of the family. “Instead of the usual epistemological question about truth, we ask, ‘How do people manage to live well despite not knowing?’”^[3] This leads to psychosocial intervention as transitional justice.

In cases in which the missing were presumed to be dead, the most important cultural element of the expressed needs was the performance of rituals that would permit the spirits of the dead to rest in peace. This was emphasized in Timor, where the consequences of not performing rituals for the dead were believed to be the potential sickness and death of family members. For Timorese families a malign spirit is the most negative potential impact of a missing relative; as such, addressing the issue of those who died in the conflict means not only addressing the needs of their families but also the demands of the spirits. For some interviewees the peace of the nation is dependent upon the peace of the spirits, with recent violence perceived as arising from the many spirits of the conflict dead still not at rest.

Not only was the quality of the transitional justice process in East Timor flawed, but it was largely inaccessible. The dominant attitude of most families to the mechanisms that had occurred is one of ignorance: hardly any families knew of the limited judicial processes that had taken place, and no family interviewed had a case heard by any court. Few victim families knew of Timor’s Truth Commission (CAVR)[4] or had contact with it.

A Critique of Rights Practice after Conflict

These data challenge a number of the assumptions that underpin rights-driven mechanisms that seek to address legacies of violence after conflict. Victims, over-represented by the poorest and most marginalized of society, overwhelmingly prioritized economic issues and the truth about their missing loved ones. The truth they sought, however, was a private truth, not a public one. They seek not a history of the conflict, but an answer about their relative. The “therapeutic ethic”[5] of truth as healing (for both individuals and nations) that has driven the truth commission as a prescription for addressing legacies of conflict is seen to have been largely irrelevant to victims in its Timorese incarnation. The process was almost entirely an elite one, with little meaning for ordinary people. A need for healing does, however, emerge clearly in these data in the form of rites required to address spiritual needs. These rites are social events that serve as highly visible collective rituals that address community needs for healing. The effectiveness of such rituals derives from their performative nature, echoing the mechanism of truth commissions but using the language of spirit rather than catharsis and operating in a local, social space rather than that of a state institution.

Many of the families interviewed for this study have an understanding of causality that rejects the assumptions of rights discourse that change is driven by law and government, believing that the actions of spirits and of their community determine their lives. Human rights practice with rural victims in both Nepal and Timor-Leste objectifies victims, and in this sense can be seen as a fetish, ascribing agency to ordinary people whilst actually denying it to them. Victims of conflict are being asked to see agency not in rites, spirits, and the bodies of the missing as they have traditionally believed, but in the concept of rights and bodies of law. The failure of transitional justice mechanisms to have relevance for ordinary people arises from the fact that they emerge not from a local but a global prescription, legislated from above with little consultation with the population. For process and institutions to build sustainable peace, these mechanisms must be rooted in the everyday social realities in which people live, emphasizing the custom and tradition that have long bound communities together and that are invisible to mimetic global practice.

In global practice, transitional justice is violation and perpetrator centered rather than victim centered, and considers the victim primarily as the object of a violation rather than a subject in her own right. Truth and justice are the normative priorities of interventions, with a lack of evidence leading to a positivistic and thin human rights that emphasizes legal remedies, most notably prosecutions, and that has few tools to engage with victims in understanding the contextual harm that has resulted from violations. As long as the transitional justice “tool-kit” contains a small and non-extensible set of mechanisms (trials, truth commissions, reparations), contexts emerging from violent pasts will be examined through the lens of these approaches, over-attributing impacts to mechanisms rather than to the influence of the social and symbolic worlds in which victims live. The data suggest that communities emerging from violence have both a far larger range of needs and a larger range of resources to address those needs than has been imagined by those steering transitional justice interventions.

A victim-centered approach has two implications. First, it challenges existing power relations of gender, caste, and ethnicity that facilitate violations and magnify their impact by seeking a socially transformative process after conflict. Second, it privileges everyday understandings that emerge from the lives of victims that are marginal in current approaches to transitional justice. The everyday is a space in which global norms compete with visions of the world rooted in both traditional and highly particular understandings. In the contexts studied here, local and indigenous perspectives exist largely independently of global discourses, such as rights. Meanings are constructed collectively in ways that are often unique to the cultures that exist within Timor-Leste and Nepal, and they define how both war and peace are perceived and how community is understood. Culture has a constitutive role in the initiation and cessation of conflict. Any peacebuilding approach that ignores such understandings risks irrelevance to the everyday lives of ordinary people.

In the aftermath of the “Arab Spring” (and its apparent decay into an “Arab Winter”) transitional justice is being advanced as an approach that can address the needs of those societies in the Middle East and North Africa that have seen regime change in recent years. Western donors are funding international NGOs and UN agencies to bring a mimetic practice based on a global standard that may or may not have relevance to those affected by violence—both physical and structural—and rights violations in the region. Whilst the revolutions in states such as Egypt and Tunisia were driven as much by youth unemployment and food prices as a demand for free elections, the transitional justice narrative has become part of a dominant liberal agenda of democratization and the rule of law that has seen such concerns marginalized in ongoing political processes. A successful transition in all these states is contingent upon a process that comprehends the many agendas that drove change and that is based not on abstract alien discourses, but on the needs of ordinary people.