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Panel: TJ in Consolidated Democracies: Insights from the US & Netherlands

Truth Processes and Victim Participation in the United States of America

Dr. Brianne McGonigle Leyh, Associate Professor with the Netherlands Institute of Human Rights (SIM) and Montaigne Centre on Rule of Law and Administration of Justice at Utrecht University’s School of Law

The notion of truth, truth-telling, and truth-seeking is a powerful one within transitional justice. In many ways, there is an unwavering belief that truth-telling and truth-seeking should inherently be part of any justice pursuit. Over the past few decades, across the United States of America, truth-seeking processes, such as the creation of truth commissions or truth commission-like processes, have proliferated. They have been created at the federal, state and local levels to deal with a wide range of violent and discriminatory contexts. This paper explores American truth commissions and how they have approached victim participation. It will focus on three truth-seeking processes, one at the federal level, one at the state level, and one at the local level. Across the differing levels, geographies, and contexts of harm, the paper will highlight efforts around inclusivity and explore developments around institutional understandings of participation. Drawing from scholarship and practice from the broader transitional justice field, the paper will highlight how current and future truth processes can better conceptualize and implement victim participation in order to have deeper engagement and impact with affected communities.

Localizing and Globalizing Truth: U.S. Transitional Justice in Comparative Context

Dr. Adriana Rudling; Global Research Institute at William & Mary

Mainstream transitional justice (TJ) scholarship has elided the United States (U.S.) in theory and analysis. This is despite U.S. influence in global TJ practice and in world politics more generally. One reason the country is excluded in research is because it is a non-traditional case; generally, when scholars think of likely candidates for TJ, they think of countries exiting authoritarianism, armed conflict, and other defined periods of violence and repression. Neglecting, even avoiding, non-paradigmatic cases is problematic, however: recent work indicates that TJ in non-transitional contexts is on the rise, amid demands for truth and justice from historically marginalized groups. Taking national truth commissions as an example, non-transitional cases 20 accounted for more than half of global cases in the first two decades of the twenty-first century. Non-transitional countries like the U.S. have also witnessed the growth of subnational truth commissions. Building on nascent efforts to “case” non-transitional TJ settings, this chapter discusses the past, present and future of TJ practice in the U.S, including what lessons the country has given the world, what lessons it has gleaned from the world, and what the U.S. and global cases may yet learn from each other. We write with the belief and conviction that survivors and victims of human rights violations and their families deserve to have their experiences acknowledged and their governments held to account – regardless of where they come from, the political regime they live under, or how neatly their local context fits within existing scholarly paradigms.

A Momentum for Historical Injustice? Comparing Land Mark Cases in Civil Court

Dr. Niké Wentholt, Post-doctoral Researcher, University of Humanistic Studies

Recent years have seen an increase in civil litigation for historical injustice cases, especially in the Netherlands. Dutch military atrocities in Rawagede, Indonesia; Shell’s pollution and violations in the Niger Delta, Nigeria; failure to prevent genocide in Srebrenica, Bosnia: all these cases have been addressed in Dutch civil court. While these ‘triumphs’ are thus being celebrated in practice, scholarship has difficulties theoretically understanding the ‘match’ between tort and historical injustice cases. Legal studies often get stuck in tort’s technicalities to acknowledge its potential; sociology on the other hand is distracted by the alleged formality of law. To overcome these narrow understandings of both tort and historical injustice, this paper uses an two-step socio-legal interdisciplinary approach, combining empirics from the four cases (gathered through the lens of lived experiences) with theory. It first sets up a conceptual framework of norms, relations, and power in law, building on socio-legal and transitional justice scholarship. Secondly, the paper studies the compatibility of tort and historical injustice through a synthesis of two compatible theories from separate disciplines: respectively civil recourse theory of tort and transformative justice. These two theories share two conceptual axes: agency and process; and participation and inclusion. Civil recourse theory and transformative justice together show how tort can challenge lawyers and judges to seek rapprochement to survivors’ and victims’ lived realities of harm. The paper will thus argue that from a socio-legal lens, despite clear hurdles and difficulties, tort can be a surprisingly rich platform to address historical injustice.

From Reparations to Repair in Civil Courts and the Public Debate? The Dutch Slavery and Colonial Past through a Transformative Justice Lens

Dr. Nicole Immler, Professor Historical Memory and Transformative Justice, University of Humanistic Studies, Utrecht

Reparations for colonial wrongs have gained renewed attention. The land mark “Rawagede court case” will provide an introductory example of the challenges of the legal framework for reparations of colonial mass violence. Then I will turn to ‘the legacy of the slavery past in the Netherlands,’ and show how conceptions of reparation have changed in the last two decades. Making use of the lens of Lisa Laplante’s “continuum justice model” (2013) I will argue that we see a shift from a narrow to a wider notion of justice. Current reparation claims in Afro-Caribbean and Surinamese communities are less about a specific product (such as an apology or reparations) but rather about a social process of relation building (such as addressing structural injustices). At the same time, these communities mobilize legal avenues in their broader search for justice. Despite their clear awareness of the limitations of the legal sphere, these platforms help them to voice their claims and enforce a societal conversation on the desired repair of social relations. This notion of ‘social repair’ challenges and extends our current understanding of what justice for historical wrongs is about. But—as is argued—it might at the same time also make reparations more acceptable to larger parts of Dutch society as it avoids the narrow ‘blame-and-guilt’ framework associated with reparations in politics and the media. Reflecting on both cases I will finally discuss what the theoretical framework of Transformative Justice – which we use of in our project Dialogics of Justice – has on offer for the reparation debate regarding historical injustice.