Participation and inclusive processes

Marginalisation and disempowerment are often at the core of human rights violations (Marginalisation and disempowerment are often at the core of human rights violations (USAID, 2014). Victimhood in turn results in further disempowerment, as the crimes ordinarily place victims in a situation where they are denied control and are subject to the perpetrators’ will (Pena & Carayon, 2013). Allowing victims to be heard and to make decisions for themselves can play a role in addressing the loss of self-esteem and confidence that can result from victimisation (Pena & Carayon, 2013; USAID, 2014).

Inclusive participation in all aspects of transitional justice processes (design, implementation, evaluation) can be important not only in fostering local ownership and perceptions of legitimacy (Ramji-Nogales, 2010; USAID, 2014) but also as an opportunity to empower local populations and challenge a range of exclusions and power relations at local, national and international levels (Andrieu, 2010; World Bank, 2012; Gready & Robins, 2014; USAID, 2014). Victims need to be seen at the core of transitional justice measures and given recognition as rights-holders, so as to enable them to become ‘citizens’ again (Valji, 2009; Ramji-Nogales, 2010; Edwards, 2013).

The participation of victims in transitional justice has often been interpreted narrowly, however, as playing a role as a witness in judicial or truth-telling processes. Such participation through testimony, while critically important, offers little agency in terms of design and implementation of transitional justice mechanisms (Gready & Robins, 2014; Robins & Wilson, 2015). Participation should also seek to transform victimhood and victims into agents of change, encouraging their access to and involvement in transitional justice processes. Such participation can be a key element of empowerment, in which the marginalised access and shape key institutions (Gready & Robins, 2014). This can generate a more meaningful, respectful and legitimate process for all involved—victims, transitional justice actors and society (Arthur et al., 2012).

Specific transitional justice institutions have attempted to provide opportunities for communities to be active participants in their operations, rather than viewing them solely as witnesses (USAID, 2014). The structure of the Extraordinary Chambers in the Courts of Cambodia (ECCC) includes victim participation, for example, whereby victims can not only appear as witnesses but also file complaints as civil parties and be represented by civil party lawyers in court proceedings (Lambourne, 2010). The Rome Statute of the ICC specifies the right of victims to participate in judicial proceedings. This provision is designed to encourage genuine engagement with victims, which was considered lacking in the ad hoc tribunals, and to acknowledge and address their needs and concerns, which may differ from the prosecution’s case (e.g. an independent need for public acknowledgement). Encouraging victims to be able to make their own decisions from the start (e.g. choice of counsel) may also give them a sense of agency (Pena & Carayon, 2013).

There is also increasing recognition and acceptance among policy-makers of the importance of a victim-centred approach and of community participation in transitional justice, such as the need to consult with conflict-affected communities in the design of transitional justice strategies (USAID, 2014). While it is accepted that it is important to focus on the sectors of the society particularly affected by the violence, the question of whom to consult can still be challenging—to determine and to implement.

It can be difficult to identify and engage with traumatised, marginalised groups to ensure multiple voices are heard (UK InterAgency Group on Rights, 2009). In some cases, it will be important to include not only the victims of conflict but also the perpetrators. Child soldiers in Sierra Leone, for example, are considered victims and perpetrators of violations, and their views on transitional justice are particularly important (Triponel & Pearson, 2010). Regional viewpoints should also be taken into account, as atrocities are likely to have had different impacts in various parts of the country. The TRC in Peru, for example, set up five regional offices to promote participation from all the parts of the country (Triponel & Pearson, 2010). Involving refugees and diaspora communities also affected by the violence is essential yet challenging to implement (see section on diaspora, refugees and IDPs). Different groups can have very different ideas about how to address a violent past and what they need to come to terms with it. It can thus be difficult to balance the varying needs of individuals, different groups and society as a whole (Andrieu, 2010).

Communities themselves may also find it challenging to take advantage of opportunities to influence design and implementation. To participate effectively, they need to be able to articulate their needs and priorities, to understand and critique proposed policies. They also need to know how to use mobilisation and advocacy strategies to ensure their voice is heard. As such, some may benefit from training and capacity-building in these areas (USAID, 2014).

Tools and guidance