‘This book is imaginative, ambitious, state of the art, interdisciplinary and

international and has futuristic reflections on justice for victims.’

Dr Pamela Davies, Teaching Fellow and Director of Criminology,
Northumbria University, UK

‘Justice for Victims is an anthology that should be in university libraries across

the world. It provides an impressive smorgasbord of writings from some known
scholars, but also many new scholars whose contributions to Victimology can now
be easily accessed. It covers rights for victims, justice in countries in transition,
and issues of reconciliation between oppressors and oppressed.’
Irvin Waller, President, International Organization for Victim Assistance
and Professor, University of Ottawa, Canada
This page intentionally left blank
Justice for Victims

Justice for Victims brings together the world’s leading scholars in the fields of study sur-
rounding victimization in a pioneering international collection. This book focuses on the
current study of victims of crime, combining both legal and social-scientific perspectives,
articulating both in new directions and questioning whether victims really do have more
rights in our modern world.
This book offers an interdisciplinary approach, covering large-scale (political) vic-
timization, terrorist victimization, sexual victimization and routine victimization. Split
into three sections, this book provides in-depth coverage of: victims’ rights, transitional
justice and victims’ perspectives, and trauma, resilience and justice. Victims’ rights are
conceptualized in the human rights framework and discussed in relation to supranational,
international and regional policies. The transitional justice section covers victims of war
from the point of view of those caught between peace and justice, as well as post-conflict
justice. The final section focuses on post-traumatic stress, connecting psychological and
anthropological perceptions in analysing collective violence, mass victimization and trauma.
This book addresses challenging and new issues in the field of victimology and the study of
transitional and restorative justice. It will be of interest to researchers, practitioners and students
interested in the fields of victimology, transitional justice, restorative justice and trauma work.

Inge Vanfraechem, PhD, is Manager of the European FP7 ALTERNATIVE project and
works at the KU Leuven, where she received her BA, MA and PhD in criminology (2006).
Dr Vanfraechem is the editor of Restorative Justice: an International Journal, the only
peer-reviewed, high standard, academic and international journal in the field of restorative
justice. Dr Vanfraechem is also a key member of the Working Group on Victimology of the
European Society of Criminology (ESC).

Antony Pemberton, PhD, is Associate Professor and Director of Studies at the Interna-
tional Victimology Institute Tilburg (INTERVICT) in the Netherlands. He has published
more than 60 articles, books and book chapters on victimological subjects, with a particular
emphasis on victims in justice processes.

Felix Mukwiza Ndahinda, PhD, is an Assistant Professor at Tilburg Law School’s Inter-
national Victimology Institute Tilburg (INTERVICT, Tilburg University, the Netherlands)
and he is also the coordinator for the Masters in Victimology and Criminal Justice at Tilburg
Law School. He holds a PhD from Tilburg University (2009); an LLM from the Raoul Wal-
lenberg Institute of Human Rights (Sweden-2006) and a Bachelor’s degree (LLB) from the
National University of Rwanda (2003).
This page intentionally left blank
 Justice for Victims

Perspectives on rights, transition and

reconciliation

Inge Vanfraechem, Antony Pemberton

and Felix Mukwiza Ndahinda
With Ivo Aertsen,Victor Jammers, Sonja
Leferink, Rianne Letschert and Stephan
Parmentier
ROUTLEDGE

Routledge
Taylor & Francis Group
LONDON AND NEW YORK
First published 2014
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa
business
© 2014 selection and editorial material, Inge Vanfraechem, Antony Pemberton
and Felix Mukwiza Ndahinda; individual chapters, the contributors.
The right of Inge Vanfraechem, Antony Pemberton and Felix Mukwiza
Ndahinda to be identified as author of this work has been asserted by
them in accordance with sections 77 and 78 of the Copyright, Designs and
Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilized in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Justice for victims: perspectives on rights, transition and
reconciliation / edited by Inge Vanfraechem, Antony Pemberton
and Felix Mukwiza Ndahinda.
pages cm
1. Victims of crimes. 2. Restorative justice. I. Vanfraechem, Inge. II.
Pemberton, Antony. III. Ndahinda, Felix Mukwiza.
HV6250.25.J87 2014
362.88–dc23
2013048744

ISBN13: 978-0-415-63433-5 (hbk)

ISBN13: 978-0-203-09453-2 (ebk)
Typeset in Times New Roman
by Sunrise Setting Ltd, Paignton, UK
Contents

List of figures x
List of tables xi
List of contributors xii
Acknowledgements xvii

General introduction 1
FELIX MUKWIZA NDAHINDA, ANTONY PEMBERTON AND
INGE VANFRAECHEM

PART I
Victims’ rights 9
1 Victims’ rights 11
PAUL ROCK

2 Respecting victims of crime: key distinctions

in a theory of victims’ rights 32
ANTONY PEMBERTON

3 Recognition of victims’ rights through EU

action: latest developments and challenges 51
HELGA EZENDAM AND FRIDA WHELDON

4 Implementing victim rights in newly industrialized

countries: reflections on major challenges
and recommendations for the future 66
K. JAISHANKAR
viii Contents

5 Should reparations for massive human rights

abuses perpetrated on African victims during
colonial times be given? 89
JEREMY SARKIN

6 State compensation for victims of violent crime 105

DAVID MIERS

7 Legal protection and assistance for victims of

human trafficking in the United States:
a harm reduction approach 140
XIN REN

PART II
Transitional justice 159
8 Victims, transitional justice and social reconstruction:
who is setting the agenda? 161
HARVEY WEINSTEIN

9 Integral justice for victims 183

RAMA MANI

10 Repairing the impossible: victimological approaches

to international crimes 210
RIANNE LETSCHERT AND STEPHAN PARMENTIER

11 Transitional justice and the victims: a special

focus on the case of Chile 228
JOSÉ ZALAQUETT

12 The Transitional Justice Imaginary: Uncle San,

Aunty Yan and victim participation at the
Khmer Rouge Tribunal 247
ALEXANDER LABAN HINTON

PART III
Trauma, resilience and justice 263
13 Perceived control over traumatic events:
is it always adaptive? 265
PATRICIA FRAZIER
 Contents ix

14 Procedural justice for victims of crime: are victim

impact statements and victim–offender
mediation rising to the challenge? 277
TINNEKE VAN CAMP AND VICKY DE MESMAECKER

15 Delivering justice to child victims of crime:

navigating the support and criminal justice systems 300
ILSE VANDE WALLE

16 ETA terrorism victims’ experience with restorative

encounters in Spain 322
GEMA VARONA

17 Victims of corruption: a conceptual framework 355

QINGLI MENG AND PAUL C. FRIDAY

18 Reconceptualizing sexual victimization and justice 378

KATHLEEN DALY

Index 396
Figures

7.1 The legal elements in identifying a crime of trafficking

in persons 144
7.2 Polaris Project (2013): 2013 State ratings on human
trafficking laws 147
9.1 Dimensions of Integral Justice 191
16.1 ETA killings without condemned main offender 333
Tables

1.1 Cases received by the Parliamentary Ombudsman under

the Victims’ Code 2009–2011 22
2.1 Comparing key characteristics of sympathy and empathy 39
7.1 Human trafficking cases investigated by HSI in 2011
and 2012 143
16.1a Numbers of ETA fatal victims over time (total 829 fatalities) 323
16.1b ETA fatalities by status, gender and location of victimization 324
16.2 Recovery and restorative factors in the process of
de-victimization for terrorism in Spain 335
17.1 Relationship of corruption manifestation and level of
victimization – for illustrative purposes 366
18.1 Sexual violence and justice matrix, A and C country
contexts (B country contexts, developing country at
peace, excluded) 385
Contributors

Kathleen Daly is Professor of Criminology and Criminal Justice, Griffith

University (Brisbane). She writes on restorative justice, indigenous justice, and
innovative justice responses to partner, family, and sexual violence. Her book,
Redressing Institutional Abuse of Children, is forthcoming (Palgrave). She is a
Fellow of the Academy of the Social Sciences in Australia, and past President
of the Australian and New Zealand Society of Criminology (2005–9).
Vicky De Mesmaecker obtained a PhD in Criminology at the University of
Leuven, Belgium. She worked as a doctoral researcher and postdoctoral
researcher at the Leuven Institute of Criminology (University of Leuven) and
has been a visiting researcher at Yale University in the United States and at
the Netherlands Institute for the Study of Crime and Law Enforcement in the
Netherlands. Her main fields of study include theories of procedural justice,
the legitimacy of criminal justice, victimology and restorative justice.
Helga Ezendam studied criminal law at Leiden University. She started working
at the public prosecutor’s office both in practice and in the development of
policy. Now she works as a senior policy officer for the Ministry of Security
and Justice. Her earlier volunteer work in the field of victim support is a source
of inspiration for her current work in the field of policy for victims of crime.
Patricia Frazier, PhD, is a distinguished McKnight University Professor of
Psychology and Associate Chair for Research in the Department of Psychology
at the University of Minnesota, Minneapolis, MN, USA. Her research exam-
ines the effects of traumatic life events, including victimization. She is a Fel-
low of the American Psychological Association and has published numerous
articles on the effects of victimization.
Paul C. Friday is Professor of Criminal Justice and Director, International
Center for China Studies at the University of North Carolina-Charlotte. He
has published eight books and numerous articles on international criminal
justice, victimology and juvenile justice. He served twenty-four years as
Treasurer and Executive Board member of the World Society of Victimology
 Contributors xiii

and in 2012 he received a Certificate of Appreciation for his work in Victi-

mology and for the World Society.
Alexander Laban Hinton is Director of the Center for the Study of Genocide and
Human Rights, Professor of Anthropology, and UNESCO Chair on Genocide
Prevention at Rutgers University. He is the author of the award-winning Why
Did They Kill? Cambodia in the Shadow of Genocide (California, 2005) and
nine edited or co-edited collections. In recognition of his work on genocide,
the American Anthropological Association selected him as the recipient of the
2009 Robert B. Textor and Family Prize for Excellence in Anticipatory Anthro-
pology. He is also the immediate past President of the International Association
of Genocide Scholars (2011–13) and was a Member/Visitor at the Institute for
Advanced Study at Princeton (2011–13).
K. Jaishankar, PhD, is a Senior Assistant Professor in the Department of Crimi-
nology and Criminal Justice, MSU and Member of Syndicate (Board of Man-
agement), Manonmaniam Sundaranar University (MSU), Tirunelveli, Tamil
Nadu, India. He has published more than 100 publications, including articles,
editorials, book chapters and books. He is the recipient of the prestigious
National Academy of Sciences, India (NASI) – SCOPUS Young Scientist
Award 2012 – Social Sciences.
Rianne Letschert is Professor of Victimology and International Law and Deputy
Director at the International Victimology Institute Tilburg (INTERVICT). At
INTERVICT she works on issues such as victims’ rights and human security
issues, in particular on international lawmaking in the field of victims’ rights
and victims of international crimes, especially reparations. She is member of
the Board of Governance of the Dutch Victim Support Organization, and expert
consultant for the Special Tribunal for Lebanon on victim issues. In 2013, she
was appointed to the Dutch Royal Young Academy of Sciences.
Rama Mani is Senior Research Associate, Centre for International Studies at
University of Oxford; Councillor, World Future Council; Co-Convenor, ‘Agents
of Transformation’; formerly Executive Director of ICES, Sri Lanka; Director of
Global Peace and Security Course, GCSP-Geneva; and Strategy Manager on Afri-
can conflicts at OXFAM-GB. She authored Beyond Retribution: Seeking Justice
in the Shadows of War (Polity/Blackwell 2002/ 2007) and co-edited Responsibil-
ity to Protect: Cultural Perspectives from the Global South with Thomas Weiss
(Routledge 2011). Her PhD is from the University of Cambridge.
Qingli Meng is Associate Director, International Center for China Studies,
University of North Carolina-Charlotte. Her PhD is in Public Policy from UNC
Charlotte. She is the author of Corruption in Transitional China: A 33 Year
Study (Wolf Legal Publishers, 2013). She is also a Post-Doctoral Fellow at
the School of Political Science and Public Administration, Beihang University,
Beijing, China.
xiv Justice for victims

Dr David Miers is an Emeritus Professor and has a long-standing research inter-

est in the criminal justice system’s responses to victims of crime, in particular
in arrangements for their compensation by offenders and by the state. He has
written extensively on and given many conference presentations on these mat-
ters. He is now retired, but still contactable at [email protected]
Stephan Parmentier studied law and sociology at the KU Leuven (Belgium)
and sociology and conflict resolution at the Humphrey Institute for Public
Affairs, University of Minnesota-Twin Cities (USA). He currently teaches
sociology of crime, law, and human rights at the Faculty of Law of the KU.
Leuven, and has served as the head of the Department of Criminal Law and
Criminology (2005–9). In July 2010 he was appointed Secretary-General of
the International Society for Criminology and he also serves on the Advisory
Board of the Oxford Centre of Criminology and on the Board of the Interna-
tional Institute for Sociology of Law (Oñati).
Antony Pemberton, PhD, is Associate Professor and Director of Studies at
the International Victimology Institute Tilburg (INTERVICT) in the Neth-
erlands. He has published more than sixty articles, books and book chap-
ters on victimological subjects, with a particular emphasis on victims in
justice processes. He co-authored a book on victims of terrorism (Assist-
ing Victims of Terrorism: Towards a European Standard of Justice, Springer,
2010), co-edited a volume on victims of international crimes (Victimological
Approaches to International Crimes, Africa, 2011) and has published a series
of articles applying concepts from social and clinical psychology to victimol-
ogy (included in The Cross-over: An Interdisciplinary Approach to the Study
of Victims of Crime, Maklu, 2010). More information can be found at http://
www.tilburguniversity.edu/webwijs/show/?uid=a.pemberton
Xin Ren, PhD, has been Professor of Criminal Justice at the California State Uni-
versity, Sacramento, USA since 1990. She is also Adjunct Professor of L.L.D.
Program at the Institute of International Studies, Ramkhanhaeng University,
Bangkok, Thailand. Previously, she was elected two-term member of the Exec-
utive Committee of World Society of Victimology and the Chairperson for both
Victim Service and membership Committees. Her research interests include
comparative studies of juvenile justice system, human trafficking and prostitu-
tion in Asia and China.
Paul Rock is an Emeritus Professor of Sociology at the London School of Eco-
nomics. He has been a Visiting Professor at a number of institutions, includ-
ing the Australian National University, the Center for Advanced Studies in the
Behavioral Sciences, Princeton University and the University of Pennsylvania.
He is a Fellow of the British Academy and the Royal Society of Arts, and
is the author of a number of studies on criminological theory and criminal
 Contributors xv

justice policy-making. He is currently working on the official history of crimi-

nal justice.
Jeremy Sarkin has undergraduate and postgraduate law degrees from South
Africa, a Master of Laws from Harvard Law School and a Doctor of Laws
degree on comparative and international law. He is admitted to practice as
attorney in the USA and South Africa. He is an Extraordinary Professor of
Law at the University of South Africa (UNISA). He is a member, and was
Chairperson-Rapporteur (2009–12), of the United Nations Working Group
on Enforced or Involuntary Disappearances.
Tinneke Van Camp has worked as a research assistant at the Catholic
University of Leuven and the National Institute for Criminalistics and Crimi-
nology (Belgium). In 2011, she obtained a PhD in criminology from the
University of Montreal (Canada). In 2013, she joined the School of Law at
the University of Sheffield. Her main interests lie in victim experiences with
restorative justice and judicial proceedings.
Ilse Vande Walle is a qualified Social Worker and works as a trainer and consult-
ant for different Victim Support organizations in Europe. Since the start of her
work for Victim Support in 1995 she has specialized in support for young vic-
tims of crime. She devised different methodologies to work with children and
youngsters and worked out training for VS workers. She developed a frame-
work and training for improving the assessment of victims’ needs, particularly
the needs of young victims. Ilse trained people in several European countries to
be aware of young victims and to learn how to support them. In 2012 her sec-
ond book, Ik krijg het moeilijk uit mijn hoofd, containing testimonies of child
victims and their parents, was published in Belgium and the Netherlands.
Gema Varona is a Lecturer in Criminology and Victimology at the University of
the Basque Country (Spain) and Senior Researcher at the Basque Institute of
Criminology. Among her books in Spanish are: Irregular Migration: Human
Rights and Duties (1994); Reparative Mediation as Social Control Strategy:
A Criminological Perspective (1998); Juries and the Architecture of Juridical
Criminal Truth (2000); Restorative Justice Through Public Penal Mediation
Services in the Basque Country: An external Evaluation (2009); Local Analy-
sis of Safety From the Standpoint of Criminology (2012); Brief Dictionary of
Restorative Justice. An Interdisciplinary Invitation (2012, co-authored with
Idoia Igartua and Alberto Olalde), and in English: Restorative Justice: New
Social Rites within the Criminal Justice System? (1996).
Harvey M. Weinstein, MD, MPH is Senior Research Fellow at the Human Rights
Center of the University of California, Berkeley and a retired Clinical Profes-
sor in the School of Public Health. As Associate Director of the Human Rights
Center from 1998–2005, he directed the Forced Migration and Health Project
and was Co-Principal Investigator on three other projects – ‘Communities in
xvi Justice for victims

Crisis; Justice, Accountability and Social Reconstruction in Rwanda and Former

Yugoslavia’, ‘Intrastate Conflict and Social Reconstruction’, and ‘Education for
Reconciliation in Rwanda: Creating a History Curriculum After Genocide’.
Frida Wheldon is the Director of Policy for Victim Support Europe, providing
policy guidance, recommendations and expert advice on victim issues and
practical implications of European legislation. She also serves as the Senior
Policy and Research Officer for Victim Support Scotland, where she is devel-
oping an internal victimology capacity while advocating to ensure that new
Scottish legislation and public policy reflects the needs of people affected by
crime. Originally from Sweden where she received her first Masters Degree in
law, she moved to Scotland in 2005 to study an LLM in International Law at
Edinburgh University.
José Zalaquett is a Professor of Human Rights at the University of Chile. He was
involved in the defence of human rights during the 1973–90 military dictator-
ship in Chile. Following his country’s return to democracy he was appointed
to the Chilean Truth and Reconciliation Commission. Subsequently he has
worked in the field of transitional justice in many countries.
Acknowledgements

The main editors would like to formulate a special word of thanks to the editing
committee of this book: Ivo Aertsen, Victor Jammers, Sonja Leferink, Rianne
Letschert and Stephan Parmentier.
The 14th Symposium of the World Society of Victimology which was the occa-
sion that inspired this book, was made possible thanks to the World Society of
Victimology, in cooperation with INTERVICT (University of Tilburg, the Neth-
erlands), Leuven Institute of Criminology (KU Leuven, Belgium) and Victim
Support Europe, represented by Slachtofferhulp Nederland (Victim Support the
Netherlands), with the contribution of the following additional sponsors: Min-
istry of Security and Justice; City of The Hague; Ministry of Foreign Affairs;
Dutch Victim Support Fund; Tilburg Law School; Wolf Legal Publishers; The
Hague Global Justice Institute; Achmea Foundation for Victims and Society; and
CZ Zorgverzekeringen.
The Symposium Organizing Committee consisted of the following people:
Chair Victor Jammers, Vice-chair Rianne Letschert, Vice-chair Stephan Parmen-
tier; Symposium manager Barbara van Gorp; Assistant Anneke Overbosch; mem-
bers Ivo Aertsen, Sonja Leferink, Antony Pemberton, Inge Vanfraechem, Miriam
Sessink, Danique Gudders and Birgit Vanderstraeten; Communication officers
Kathelijn van Heeswijk and Debbie Rovers; student assistant Sylvia Hazenbroek;
and Financial administrators Jacqueline Nahon, Lenie Herrema and Evelien van
Rijt.
Birgit Vanderstraeten and Danique Gudders were of great help in setting up
the conference programme, and the INTERVICT team composed of Barbara van
Gorp, Kathelijn van Heeswijk, Anneke Overbosch, Debbie Rovers and a number
of Tilburg University students took care of the practical organization.
A special word of thanks goes to the editorial team at Routledge for their effi-
cient work in preparing and finalizing this book.
This page intentionally left blank
General introduction
Felix Mukwiza Ndahinda, Antony Pemberton
and Inge Vanfraechem

This book is the result of the 14th International Symposium of Victimology, held by
the World Society of Victimology in cooperation with INTERVICT (University of
Tilburg, the Netherlands), Leuven Institute of Criminology (KU Leuven, Belgium)
and Victim Support Europe, represented by Slachtofferhulp Nederland (Victim Sup-
port the Netherlands) in the Hague, May 2012. Looking at justice for victims, the
conference focused on three themes that are important for victimology as it stands
today: victim rights, transitional justice, and trauma, resilience and justice. These
themes come to the fore in victimological writings and theorizing as seminal in cur-
rent thinking: after years of bringing the forgotten party into the picture, can we speak
of ‘victim rights’ or are we rather providing standards for victims when confronted
with the criminal justice system? When looking at societies in transition in Eastern
Europe, Latin America and Africa, what is the position of the victim? The relatively
new field of transitional justice covers this latter question as well as related ques-
tions dealing with accountability, reparations and the rebuilding of society after gross
atrocities. Lastly, the broad theme of trauma, resilience and justice looks at more
psychological findings that are not always connected to the victimological field, as
well as reflections on the possibilities of restorative justice in offering the victim a
more central role in the criminal handling of the case.
Both ‘victims’ and ‘rights’ are elastic concepts (Joutsen, 2013) and therefore ‘vic-
tim rights’ may mean different things. Paul Rock in his contribution asserts that at
first sight victim rights seem to be self-evident at the beginning of the twenty-first
century: (inter)national provisions such as the 2012 European Council Directive (see
also the contribution from Ezendam and Wheldon, this volume) put forward certain
(procedural) rights, such as the right to information, to being heard and to be treated
with respect. Nevertheless, Rock argues that victim rights are met with resistance and
are therefore, at least in the common law world, reduced to service standards which
cannot always be enforced. Rights then can be deemed to be ‘aspirational’.
Antony Pemberton departs from the assessment that the introduction of vic-
tims’ rights into criminal justice has not been informed by a systematic rationale.
His contribution calls for more conceptual clarity in understanding what is owed
to victims and why. To this end he analyses three key distinctions between closely
related constructs, which he finds to be confused within thinking about victims’
2 General introduction

rights. First he distinguishes two different forms of respect. Recognition respect

entails giving the fact of victimization appropriate consideration in one’s actions,
while failing to do so amounts to a failure to meet a moral standard. Appraisal
respect instead is closer to admiration: it consists in the attitude itself and does
not require any subsequent action. He argues that while recognition rather than
appraisal respect is an appropriate base for victims’ rights, the latter frequently
does play a role. Second, he juxtaposes empathy and sympathy. Empathy offers
room for viewing the victim as an equal agent, while sympathy instead will lead to
paternalizing action. Rights grounded in sympathy rather than empathy fail to suf-
ficiently recognize victims’ own agency. Finally, the author considers harmfulness
and wrongfulness: the harm experienced by victims of crime is in part constituted
by its character as a public wrong. This contribution and victims’ own unique
perspective on the extent of harm suffered often leads to an understanding that
this also applies to the features of the wrongfulness of crime, to which the victims’
own experience does not admit. Pemberton considers this to be mistaken, both on
empirical grounds and as it is grounded in the wrong form of respect.
Helga Ezendam and Frida Wheldon describe the origins of the 2012 EU Direc-
tive concerning minimum standards on the rights, support and protection of victims
of crime. They explain how the evaluation of the preceding Framework Decision
in the same area found this legal instrument to be too vague to secure harmonious
transposition into the legislation of EU member states. With the Directive, the hope
is that the downsides of the Framework Decision can be avoided. Rights which are
provided within the Directive include the right to information and protection, legal
assistance, translation and support. In view of the authors’ backgrounds, the right
to support is further elaborated. The EU Directive is binding and could therefore
have a high impact in practice but as Ezendam and Wheldon point out, the actual
implementation within the member states may vary widely and it remains to be
seen whether one can really talk about ‘rights’ rather than standards. It is interest-
ing to note that the EU Directive is entitled ‘minimum standards’, which could be
linked to the finding in common law countries (as stated by Rock) that rights are
mostly translated into standards.
K. Jaishankar starts from the UN Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power (1985) to study nine newly industri-
alized countries (NICs), namely Brazil, China, India, Malaysia, Mexico, Philip-
pines, South Africa, Thailand and Turkey. The author concludes that there is still
some work to be done when it comes to implementing victim rights in legisla-
tion, although some countries have undertaken steps in that direction. The author
‘would rank Thailand as the top NIC which guarantees the rights of victims by
specific legal procedures and a separate law for victim compensation. (…) Except
Thailand, all NIC countries analysed in this chapter need to revamp their criminal
justice system focusing on the rights of victims of crime (…)’.
Jeremy Sarkin in his contribution evaluates to what extent victims of human
right abuses in African colonial times have a right to reparation. He argues that
at the time when the atrocities took place, victims already had rights and that
 General introduction 3

‘international law has recognized the right of the individual to claim human rights’
for a long time. The author shows some examples of reparations for atrocities com-
mitted in the eighteenth and nineteenth centuries and concludes that since rights
existed then, victims and antecedents can claim a right for reparation for abuses
committed in the past, especially since the consequences of these abuses affect
contemporary generations through, for example, the loss of natural resources. Sar-
kin explains that reparations should not be merely financial, but they may include
‘damages, redress, restitution, compensation, rehabilitation and satisfaction’.
Rather than individual compensation, he believes ‘group or collective reparations
are a better alternative’ – an element which probably needs some further reflection
although some work on this has been done in the field of transitional justice (the
theme of Part II of this volume; see also e.g. Aertsen et al., 2008).
David Miers looks more in depth at the specific right to compensation. He
describes the provisions in the EU and US, and in addition compares Australia,
Canada and Great Britain, looking at three defining characteristics: the scope of a
criminal injury, the approach to undeserving victims, and the injuries and losses
that are covered. The underlying argument for state compensation tends to be that
it is a recognition for the suffering, but it cannot be seen as taking up responsibility
for not being able to protect citizens from victimization. Thus, victims generally
have a right to compensation by the offender, but Miers concludes that when it
comes to state compensation, this right does not amount to much.
Xin Ren studies the legal provisions regarding legal protection and assistance
for victims of human trafficking in the US. According to Ren, human trafficking is
an emerging human rights issue. She points out that beside federal and state level
legislation in the US, the UN Protocol to prevent, suppress and punish trafficking
in persons, especially women and children (2000) and the UN Protocol against
the smuggling of immigrants by land, sea and air (2003) are important tools in
the combat against human trafficking. US provisions contain immigration relief,
benefits and services, civil remedies, and legal aid and assistance. The Equal
Employment Opportunity Commission investigates claims of discrimination and
represents victims against abusive employers in labour trafficking cases.
Since the end of World War II, societies confronted with gross violations of
human rights committed or tolerated by the state have struggled to come to terms
with the tragic legacy successor governments are confronted with. Since the end
of the 1980s and early 1990s, the various mechanisms and processes aimed at
addressing the legacy of violations as societies struggle to move forward have
been captured under the concept of transitional justice.
Harvey Weinstein provides a compelling and critical analysis of dominant
narratives in the transitional justice literature. He places the victim at the centre
of an exploration of the tensions between societal reconstruction and the quest
for accountability in the aftermath of a conflict that resulted in gross human
rights violations. The chapter cautions against dogmatic prescriptions from a
variety of global actors involved in transitional processes that do not always
account for the actual needs and voices of the real victims who bear the scars
4 General introduction

of the committed atrocities. The author argues that in spite of a multiplicity of

transitional justice mechanisms, they are still prominently dominated by a retrib-
utive paradigm, regardless of the otherwise relevant contexts of applicability.
Furthermore, he argues that not only do dominant transitional justice processes
‘reinforce a sense of victimhood and entitlement that rarely is satisfied’ but also
that those who suffered at the hands of an abusive regime can end up ‘lost in
the politics of victimhood, discipline boundaries and political power plays’. In
addition to an elaboration on the disempowering dimension of the ‘victim’ label,
Weinstein further argues that the dominant emphasis in litigation of human
rights’ abuse may hamper rather than reinforce the goal of social reconstruction
after the conflict. The author emphasizes the necessity of responses of conflict
and human rights violations that build on contextual realities and needs.
Rani Mani somewhat complements Weinstein when she introduces the notion
of integral justice, whereby victims are treated as ‘incipient heroes’ instead of
remaining trapped in their status as victims. In an effort to enable victims to make
the transition from victimhood to ‘hero-hood’, the author argues that integral jus-
tice capitalizes on developments and findings in going beyond dominant victimol-
ogy and transitional justice by capturing dimensions not covered by these fields
such as culture, ecology and spirituality. Integral justice is presented as a form of
justice that ‘transcends borders, penetrates and understands cultures, and com-
bines disciplines to provide satisfactory responses to the injustice suffered by vic-
tims and the wounds inflicted upon society as a whole as a consequence’. It is pre-
sented as a holistic form of justice that integrates politico-legal, societal, cultural,
ecological and spiritual dimensions. Mani argues that taking these dimensions
into consideration in responses to victimization might lead to victim transforma-
tion. Integral justice would not only provide justice to the victims but also aim at
social reintegration of perpetrators.
Rianne Letschert and Stephan Parmentier take a victimological approach in
examining what they deem to be an impossible task of providing full individual
reparations to victims in contexts of mass victimization. In an attempt to apply
victimological theory to situations of mass victimization, the chapter uses empiri-
cal data from three different contexts of mass victimization in examining the con-
temporary practice in some forms of reparations for victims of mass atrocities.
The authors acknowledge that owing to the contextual difference but also to the
fact that the data from Bosnia and Serbia, Northern Uganda and Cambodia were
gathered using different methodologies, it is not an easy task to systematically
compare these situations. In spite of differences in individual attitudes and needs,
the authors find that victims are strongly interested in individual or collective
forms of reparations, be they material, financial, symbolic or social services.
It is widely documented that the concept of transitional justice was coined in ref-
erence to the transition from military rule in a number of Latin American countries
from the 1980s. José Zalaquett draws on his academic and practical experience as
an activist and practitioner in reflecting on the role of victims in transitional proc-
esses in Latin America, with a particular focus on his native Chile. His examination
 General introduction 5

shows that victims were the central focus and key players in the transitional proc-
esses aimed at bringing accountability for human rights violations committed
in a number of countries on the sub-continent. Reflecting on the dilemmas and
lessons of transitional justice processes in the studied context, the author argues
that all aspects of transitional justice, namely truth telling, memory preservation,
acknowledgement, reparations, criminal justice and national reconciliation can be
and should be examined from the standpoint of the victims’ needs.
Alex Hinton examines the imagery of transitional justice in Cambodia through
the narrative of Uncle San and Aunty Yan. These two fictional characters are por-
trayed in a booklet aimed at sensitizing the Cambodian population on the benefits
of participating in the proceedings before the Extraordinary Chambers in the Courts
of Cambodia. The Chambers, also known as the Khmer Rouge Tribunal, were set
up to try dignitaries of the Khmer Rouge regime for atrocities committed during
their reign of terror between April 1975 and January 1979. By transitional justice
imagery, the author unpacks ‘a set of interrelated discourses, practices, and institu-
tional forms that help generate a sense of shared belonging among a group of peo-
ple’. The imagery carries an idea of ‘transformation of post-conflict societies from a
negatively marked spatio-temporal modality of being to a positively valued future,
with the transitional justice mechanism serving as the vehicle of change’.
Victimology is an interdisciplinary field. Academics and practitioners with a
wide variety of backgrounds embark on studies of the experience of victims of
crime. This offers opportunities for disciplinary integration and learning from
the insights of other perspectives, but also entails the risk of fragmentation, rein-
venting the wheel and construct drift, where the correct meaning of concepts and
research findings is lost in translation. Under the heading Trauma, Resilience and
Justice the 14th International Symposium of the World Society of Victimology
specifically sought to bridge disciplinary divides and enhance interdisciplinary
understanding, simultaneously challenging notions of passivity, helplessness and
vindictiveness in victims of crime.
Patricia Frazier’s contribution summarizes her extensive work on the effects of dif-
ferent attributions on victims’ coping with the effect of crime and in particular the
extent to which perceptions of control lead to or more or less distress. Her research
has revealed that it is crucial to distinguish forms of control along a temporal dimen-
sion. Believing that one could have prevented the event from occurring or had control
over the fact that the event occurred (past control) is related to more distress, which is
also true for dwelling upon other attributions – for instance blaming the offender – for
the occurrence of the event. Focusing on the question of future control – can I keep it
from happening again? – also leads to poorer outcomes. Instead better adjustment is
linked to what we can actually control in the present: how we react to the event, and
how we think and feel about the event. Stimulating this present control is therefore an
important avenue for improving victims’ recovery after traumatic events and Frazier
shows the application of this in the online tool she has developed.
Control is also an important theme in the procedural justice literature. As Tin-
neke Van Camp and Vicky De Mesmaecker emphasize, a certain degree of process
6 General introduction

control or ‘voice’ is an important determinant of the experience of participants in a

wide of justice processes, much of which also applies to victims in criminal justice
processes. Voice is one of three elements – with quality of treatment and fairness of
decision making – which are commonly regarded as the antecedents of perceptions
of procedural fairness. Van Camp and De Mesmaecker use these three categories as
a guide to analysing the extent to which victim impact statements (VIS) and victim–
offender mediation (VOM) meet victims’ needs in justice processes. A VIS is a writ-
ten or oral statement in which the victim of a crime describes the physical, material,
psychological and social harm suffered as a result of the crime, while VOM is a
form of restorative justice, bringing together victims and offenders with an impartial
mediator to collectively resolve how to deal with the aftermath of the offence and its
implications for the future. According to Van Camp and De Mesmaecker VIS is not
yet fulfilling its potential for delivery of procedural justice, while they find VOM
to more fully apply the procedural justice model, with its attention to the parties’
voices, interactional quality and transparency.
Notions of procedural justice have been instrumental in the development of the
position of victims of crime from their unwelcome status as the forgotten party of
criminal justice. This is not equally true for children who fall victim to crime, as Ilse
Vande Walle’s work reveals. Vande Walle challenges many presumptions in the way
child victims are approached: that they are by definition more vulnerable and less
resilient, should be completely shielded from what has happened and/or should be
repetitively encouraged to emote about their experiences. She shows that many of
the needs young victims have are similar to those of adults: the need to voice their
concerns, to receive information about what happened, to be taken seriously and
given space and time to recover – while others are idiosyncratic about their situa-
tion, emphasizing the importance of their pets, school and parents.
Where VOM is increasingly a regular feature of criminal justice systems
across the world, there are areas in which its application remains a point of
controversy. A case in point is restorative justice encounters in the aftermath
of terrorist victimization. Gema Varona’s contribution analyses the complexi-
ties of bringing victims and offenders of ETA-terrorism in the Basque Country
together. Over the course of the past decades ETA has been responsible for more
than eight hundred fatalities, as well as more low level but also more widespread
and pervasive threatening behaviour. In 2011 it declared a definitive cessation
of its activities and called for an end to the conflict. Varona brings out much of
the dilemmas currently facing the Basque Country and calls for a multi-polar
and flexible approach to justice: there are no easy answers. Just to mention two
examples: on the one hand, victims may fear the recasting of the years of terror
as political conflict, which retrospectively casts their losses in a different and
in many ways unfavourable light and associate restorative justice with this per-
spective. Any reframing at the societal level will place pressure on the victims’
narratives of events. On the other hand, victims may welcome the opportunity to
meet their offender or another member of ETA and be able to express their views
and feelings, while societal parties frown upon these encounters.
 General introduction 7

The importance of understanding the different societal levels impacted by crime is

also a key issue in Qingli Meng and Paul Friday’s conceptual framework concerning
victims of corruption. The negative impact of this form of crime is difficult to quantify
exactly, but estimates invariably point to astronomical figures of tens or hundreds of
billions of dollars. As Meng and Friday emphasize, it is not a private matter between
corrupted and corruptor, but something that may destroy and degrade whole econo-
mies and cultures. This is particularly true of systemic/endemic forms of corruption,
which they distinguish from sporadic (sectoral) and individual forms of corruption. A
similar threefold distinction is made between individual damage, institutional dam-
age, and social or societal damage. Distinguishing these dimensions is an important
element in recognizing the different needs of victims of corruption.
Kathleen Daly’s chapter finally brings together many of the threads under the
heading of trauma, resilience and justice and in fact of the whole symposium.
Her Victimization and Justice model provides a roadmap for future victimological
research, in which she interweaves justice mechanisms, victimization contexts
and victims’ justice interests. As to the former: instead of juxtaposing different
paradigms of justice, Daly calls for a view of justice mechanisms on a continuum
ranging from conventional to innovative, which can be combined in a variety of
ways and does not a priori privilege one form of innovation over other possibly
equally rewarding potentialities. In reviewing justice mechanisms, she calls for a
renewed attention to conceptual clarity, instead of the loose use of terms which is
common in the field. The different contexts of victimization are set out in Daly’s
Sexual Violence and Justice Matrix. Here she points to the fact that much victi-
mological evidence is likely to be context specific and to this end the matrix offers
two key dimensions: different country contexts (developed, developing, at peace
or conflict/post-conflict) and what Daly calls the offending-victimization contexts
(individual, organizational, institutional and collective). Finally Daly draws atten-
tion to the problem of the lack of adequate methods to determine the effectiveness
of justice mechanisms, with both satisfaction surveys and therapeutic approaches
coming up short. She calls for a reorientation on the key question of effectiveness
towards the mechanisms’ capacity to address victims’ justice interests and the
extent they do so. These justice interests can then be categorized as participation,
voice, validation, vindication and offender accountability.

Bibliography
Aertsen, I., Arsovska, J., Rohne, H.-C., Valiñas, M. and Vanspauwen, K., eds, 2008.
Restoring justice after large-scale violent conflicts. Kosovo, DR Congo and the Israeli-
Palestinian case. Cullompton: Willan Publishing.
Joutsen, M., 2013. Trends in victims’ rights. Unpublished paper.
Shoham, S.G., Knepper, P. and Kett, M., eds, 2010. International handbook of victimology.
Boca Raton: CRC Press.
Walklate, S., ed., 2007. Handbook of victims and victimology. Cullompton: Willan
Publishing.
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Part I

Victims’ rights
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Chapter 1

Victims’ rights
Paul Rock1

Introduction
At first blush, the proposition that the victims of crime should have rights is
unexceptionable and a number of States assert that they have now ceded them.
After all, it had long been complained that victims were marginal, the ‘forgotten
party’, treated only as potential witnesses, complainants and ‘alleged victims’
until a conviction had been secured and, in very exceptional cases, as claimants
to criminal injuries compensation. Victims were denied property in their own
crimes (Christie 1977); denied information about the progress of ‘their’ cases
(see Shapland et al. 1985); found it difficult to retrieve stolen possessions; expe-
rienced delays and discomfort waiting for trial (if trials ever materialized); and
were subjected to the possibility of aggressive cross-examination at trial itself.
In 1987, Lois Herrington (1987, p. 141), the former Assistant Attorney General
of the United States and the chairwoman of the 1982 Presidential Task Force on
Victims of Crime, claimed that:

The system served the judges, lawyers, and defendants, while ignoring, blam-
ing, and mistreating the victims. Once they survive the initial impact of a
crime, the victims are drawn into a system that treats them with indifference
at best and abuse at worst.

An increasing number of victims cried out for what they called recognition and
respect.
During and after the 1970s, a concatenation of events began to remedy that
neglect: the emergence, first, of a renewed, ‘second generation’ feminism deploring
the treatment of the female victims of rape (see, for example, Brownmiller 1977)
and domestic violence as ‘secondary victimisation’ and bringing about the founding
of rape crisis centres and women’s refuges (see Pizzey 1977; Dobash and Dobash
1979). Later other activist organizations came into being, claiming greater rights to
acknowledgement and participation in procedure, claims that were accompanied by
the establishment of self-help and campaigning groups that agitated for change; the
apprehension that the criminal justice system needed its witnesses, and companion
12 Paul Rock

fears that victims might desert the criminal justice system, refuse to report crime
and refuse to testify (see Knudten et al. 1978). All this led to prosecutor- and police-
initiated programmes for victims and witnesses; the maturing of the new discipline
of victimology, founded in the 1940s and 1950s (see von Hentig 1948; Wertham
1949; Mendelsohn 1963) and dedicated to the analysis and, in many cases, the amel-
ioration of the standing of victims; the work, in England and Wales and elsewhere,
of Victim Support; the revelations of crime surveys about the incidence and impact
of crime, and much else. It is now hard to deny victims. Their demands, it has even
been said, are being used to give legitimacy to the actions of states whose moral
authority has been weakened (see Allen et al. 2000; Boutellier 2000), drowning out
the voices of experts and practitioners.
Yet on inspection, both words, ‘victim’ and ‘right’, have proved, partly by
design, to be ambiguous and elusive, politically freighted and practically con-
tested. What has been conceded and to whom it has been given is not at all trans-
parent. In exploring these matters, I shall perforce concentrate on what I know
best, the role of the victim in common law countries, and in England and Wales
above all.

Who are the victims?

Let me begin with the meaning of the term victim. The definition offered by The
New Shorter Oxford English Dictionary (1993) talks not only about what might
seem to be the straightforward case of victims of crime conventionally understood,
but also those killed and offered as sacrifices; those who are tortured or killed by
another; ‘a person subjected to cruelty, oppression, or other harsh or unfair treat-
ment or suffering death, injury, ruin, etc., as a result of an event, circumstances, or
oppressive or adverse agency’; or a person who is taken advantage of or a dupe. A
victim may then be other than one who suffers as a result of a simple criminal act.
And lest it is imagined that such a catholic description has been favoured simply
by outsiders – those who are not lawyers, politicians, practitioners or criminolo-
gists – recall the busy agitation that has continually taken place within the crimi-
nal justice system to extend the elasticity of the term. Although the term victim
connotes loss, weakness, submission, subjugation and pain; although some reject
its associations with passivity and defeat, disown victim status and, following
those who endured the Holocaust, prefer instead to employ the word ‘survivor’;
the word also carries with it the promise of rewards. In what often takes the form
of a binary system, the victim is the man or woman who has been vindicated, not
the wrongdoer but the wronged; the innocent, not the guilty; one who deserves
compassion and support, not condemnation; compensation and vindication; ret-
ribution and reparation. There are gains to be made in being so classified and
individuals and groups have striven to achieve them.
Recall the jostling that attended the framing of the 1985 United Nations Decla-
ration of Basic Principles of Justice for Victims of Crime and Abuse of Power, a
jostling that ultimately furnished a somewhat baggy description of quite who it is
 Victims’ rights 13

who should be recognized as a victim for political and practical purposes. Matti
Joutsen (1987, p. 23), then of HEUNI, an organization affiliated to the United
Nations, who was one of the architects of the Declaration, remarked that the task
of definition lay

at the heart of one of the greatest drafting difficulties in preparing the... Dec-
laration... According to the broader perspective, victims are to be understood
as those who suffer as a result of acts that a) are a violation of national crimi-
nal laws, b) are a violation of international criminal law, c) are a violation of
internationally recognized human rights, or d) otherwise involve an abuse of
political or economic power. This is the view that was taken... by some of the
drafters of the United Nations Declaration.

The result was that victims were defined conservatively enough under paragraph 1
as ‘persons who, individually or collectively, have suffered harm, including physi-
cal or mental injury, emotional suffering, economic loss or substantial impair-
ment of their fundamental rights, through acts or omissions that are in violation
of criminal laws operative within Member States...’, but also, much more loosely
(see Bassiouni 1999, p. 48), and not unlike an earlier totalitarian model of crimes
by analogy, under paragraph 18 as

persons who, individually or collectively, have suffered harm, including

physical or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights, through acts or omissions that do
not yet constitute violations of national criminal laws but of internationally
recognized norms relating to human rights.2

In Canada, at much the same time, the Federal-Provincial Task Force on Justice
for Victims chiefly attended to the victimization of women, native Canadians,
the elderly and the handicapped, but excluded young men and those who were
gay – and its decisions were political. Feminism had awarded women a strong
political presence in the Ottawa of the 1980s, but young and gay men, it was
thought, lacked public sympathy and, in the words of one federal official, ‘they
were nobody’s favourite victim’ (Rock 1986, pp. 310–311). Recall too the moves
being made in the 1990s by those who wished to be acknowledged as members
of an ever-expanding circle of victims: those identified as victims of the new and
increasingly well-populated category of hate crime (Jacobs and Potter 1998); the
alleged victims of abuse made known through what was called ‘recovered mem-
ory’ (Pendergrast 1995); the secondary and tertiary victims of crime, including,
importantly, the families of homicide victims; those who may have been distressed
by having witnessed and attended atrocious crimes; the families of serious offend-
ers who have on occasion claimed to be ‘the other victims of crime’ (Rock 2000);
and even offenders themselves. Even within victim groups there has sometimes
been a sifting and ranking process organized by what the traumatically bereaved
14 Paul Rock

labelled ‘competitive grief’. Rather luridly perhaps, one of the outcomes of such a
contest for recognition, some like Charles Sykes (1992) would say, is that a coun-
try like the United States has been turned into ‘a nation of victims’.
It is in this sense that a description of who is or is not a victim implicates a
certain view of politics, an ordering of identity, status and reward, a model of
causality and a framework for blame and explanation. It presents an iconography
of who it is who may be said to have suffered at whose hands with what conse-
quences and in what sort of social, moral and economic system (see Pitch 1985).
Holstein and Miller (1990, p. 107) once remarked that: ‘As an act of interpre-
tive reality construction, victimization unobtrusively advises others in how they
should understand persons, circumstances, and behaviours under consideration.’
How else is one to read the conclusions of the Task Force on Victims’ Rights and
the Justice System (1991, p. 337): ‘The issues of economic and environmental
victimization are of EXTREME URGENCY, transcending national boundaries?’
[emphasis in the original]. How else, too, is one to read the manifesto of a femi-
nist ‘international tribunal’ that was convened in California in the mid-1970s: ‘the
women present completely rejected patriarchal definitions of crime; all man-made
forms of women’s oppression were seen as crimes. Most of the crimes testified
about are not recognized as such by patriarchal nations...’? (Russell and Van de
Ven 1976, p. xv). Radical criminology and critical victimology have had their
preferred victims as well. In the empirically innocent days before crime surveys
began to make their full mark, and some on the left realized that crime hurts the
poor as well as the rich (see Lea and Young 1985), minority ethnic groups as well
as members of the majority population, women as well as men (see Jones et al.
1986), there were those who would have had us concentrate not on those who suf-
fer from or commit volume crime – that, it was argued, was a source of ideologi-
cal irrelevance, mystification and distraction – but almost solely (if victims were
to be considered at all) on those who experienced racism, imperialism, sexism,
corporate crime and crimes and abuses of human rights inflicted by the State (see
Kauzlarich et al. 2001).
But even if one restricts the conception of ‘victim’ to the notion of one who has
suffered from a crime narrowly defined, there are still difficulties in identifying
and ratifying the potential bearer of rights.

Who deserves rights?

According to estimates based on the British Crime Survey,3 there were some nine
and a half million crimes committed in England and Wales in 2010–2011, and the
figure of recorded police crime was 4.2 million. Just under a quarter (23 per cent) of
the incidents reported to the British Crime Survey were crimes of violence, includ-
ing robbery; a fifth (22 per cent) incidents of vandalism; about half (47 per cent)
were thefts, of which vehicle-related theft was the most common4 and one-twelfth
(8 per cent) burglaries. There were 642 homicides, leaving behind perhaps some
three or four thousand immediately bereaved people. We know too that, because
 Victims’ rights 15

of repeat victimization, the experience of crime can be especially concentrated and

intense for some: 44 per cent of the victims of domestic violence, 27 per cent of the
victims of vandalism, and 19 per cent of the victims of acquaintance violence were
repeat victims (and, as a counterweight, individual crimes may well have multiple
victims). Overall, more than two-fifths of reported crime in England and Wales was
said in the mid-1990s to have been experienced by 4 per cent of victims (National
Board for Crime Prevention 1994).
We still understand rather too little about the phenomenology of victimization
and victim identity (Rock 2002), but it may be conjectured that, distressing as
an incident of theft and burglary can be (Maguire 1982), it need not necessarily
form the basis of an indelible master status. To embark on a moral career self-
consciously as a victim is an unusual venture: being victimized and assuming
an enduring social role of victim are not at all the same. There are contingencies
and chief amongst them is the presence of an uncommonly distressing trauma or
trauma-like experience or succession of linked experiences that seems to signal, if
only for a while, an irreversible existential turning-point, a ready-made narrative
or set of narratives and an organized response to ratify and make sense of what
has been undergone. The victims who make political demands, who campaign and
who seek rights, are unlikely to have been recruited from the great mass of peo-
ple who have experienced volume crime. Those who have mobilized themselves
as victims and come prominently before the mass media, the politicians and the
policy-makers, the men and women who have seized the popular and political
imagination, tend not to be the victims of burglary or theft or isolated incidents
of petty vandalism. They are not those who might be called victims an sich, but
victims für sich, the victims at first hand of sexual abuse, prolonged violence,
stalking, abuse, hate crime, rape and arson and, at second hand, of murder and
manslaughter. Politicized or activist victims are exceptional figures, secondary
victims in the sense that Edwin Lemert might have recognized, people who have
acquired a self-conscious victim identity, but it is they who have chiefly made
their mark on representations of victims and on the politics of victims’ rights.
That has certainly been the case in Australia (Rock 2006), Canada (Rock 1986),
the United States and, latterly, after the partial political eclipse of Victim Sup-
port, England and Wales (but not, it seems, Scotland). About a third of those wit-
nesses who elected to come forward or were nominated by NOVA, the American
National Organization for Victim Assistance, to testify before the influential 1982
President’s Task Force on Victims of Crime were said to be victims and the very
few I could identify were all relatives of murder victims. None, it seems, was
a victim of a misdemeanour.5 Such victims have a compelling intensity. They
make an impression. The President’s Task Force report (1982, p.vii) subsequently
reflected that:

You must know what it is to have your life wrenched and broken, to real-
ize that you will never really be the same. ... We who have served on this
Task Force have been forever changed by the victims we have met, by the
16 Paul Rock

experiences they have shared, by the wisdom sprung from suffering that
they imparted.

So it was too with the Victims Advisory Panel that was set up in England and
Wales in 2004 to allow politicians to confer with victims: six of the initial twelve
members were homicide survivors, one a victim of a stalker, one a victim of an
aggravated burglary, one a victim of sexual assault and another a victim of rape.
The then Lord Chancellor, Lord Falconer, reflected that:

They are a vocal – and for us – challenging group that ask pointed questions
on our commitment to deliver and meet the needs of people like them. We
see the panel as a key part of our drive to ensure a victim-centred approach
to Criminal Justice.6

The rights and services of which such people speak are of immediate moment to
the seriously afflicted (the one major victim assistance organization that cannot
be thus described, the British body, Victim Support, was set up by a group of
penal reformers, not by victims themselves (Rock 1990); it caters for the victims
of volume crime as well as those of traumatic crime, and it was long wary of
demanding rights at all). In England and Wales, members of the Victims Advisory
Panel talked about the right to obtain trial transcripts (although no more than 18
per cent of crimes go to trial, and even fewer to courts of record where such tran-
scripts are prepared, a mere 6 per cent of total proceedings in 20107); a review of
the Coroners’ Service (responsible for inquests in cases of unnatural death); legal
support; and counselling in the management of post-traumatic stress disorder, the
condition peculiarly associated with grave crime and sudden bereavement.

The victim’s eligibility for rights

How victims and victimization come into view has been shaped accordingly: in many
jurisdictions victims are represented as blame-free, harrowed and traumatized people
who have experienced major crimes and require significant psychological or psychi-
atric support. Rebuilding Lives: Supporting Victims of Crime, a 2005 White Paper
issued by the three Departments of State administering the criminal justice system of
England and Wales, recorded a drift to that view when it reported that:

Even relatively minor crimes can be traumatic, but the most serious cause
enormous emotional and physical harm. ... There is scope for more use of
specialist staff in delivering services to victims with particular needs, for
example in the most serious cases such as sexual offences, domestic violence,
serious violent offences and racial offences.
(Secretary of State for the Home Department, the Secretary of State for
Constitutional Affairs and the Attorney General 2005, p. 3, 31)
 Victims’ rights 17

And even then, further interpretive work must be done to refine the depiction of
victims. Only a few will actually be deemed worthy of rights.
First, it must be said that eligibility is usually linked to the management of
encounters with criminal justice agencies and many rights are on offer to victims
only when a crime has been reported and an offender has been identified. People
who remain outside the criminal justice system (and some 60 per cent of offences
are not reported to the police) may be comparatively benighted (see Reeves and
Dunn 2010, p. 66).
Second, it is not victims, warts and all, who receive immediate recognition
(Christie 1986). David Downes once said informally that victims are both saints
and pariahs, and some victims’ groups, politicians and victimologists have not
found that dissonance comfortable. The very idea that victims may have been com-
plicit in what befell them; that they may have some responsibility for their suffer-
ing; that they may offend as well as being offended against; that a useful predictor
of who will become a victim is his or her criminal record; that victims may be mor-
ally tainted; that, in short, and borrowing Inkeri Antilla’s words (1964, p. 5), one
should not think as victimologists of blacks and whites but of greys; has at times
been dismissed as an unconscionable ‘victim-blaming’ (see Clark and Lewis 1977;
Lamb 1996). Images of victims have often been sanitized by campaigners, particu-
larly in the cases of domestic violence and rape, and even more particularly still in
cases of homicide, so that it is rare that one will encounter a description of a victim
of murder or manslaughter that is other than eulogistic. Victim impact statements,
obituaries and newspaper reports generally (but not always) seek to construct an
unblemished, bowdlerized memory by lauding the dead. The dead are supposed
always to be irreproachable. De mortuis nil nisi bonum.
Those filtrations may be formalized and reinforced in law and its adversarial
system. Defendants at trial cannot receive grey verdicts: they are supposed to be
found unambiguously guilty or not guilty (at least in English and Welsh law, if not
in Scots law). One cannot be just a little guilty. The Criminal Injuries Compensa-
tion Authority of England and Wales makes awards only to the ‘blameless victims
of violent crime’ (2011, p. 1). Politicians will not besmirch victims when they talk
about law and order. Proclaiming the first Victims of Crime Week in April 1987,
President Reagan opened by saying that: ‘Nearly thirty-five million Americans
became victims of crime in 1986. Six million of them were victims of serious,
violent crimes. Crime – of any kind – can have a devastating impact on innocent
victims and their families.’8 Note the president’s instant recourse to the vocabu-
lary of a juxtaposed innocent victim and violent crime.
Invisible in much of the politics of victims, at least (for the time being) outside
the United Kingdom, then, is the commonplace, not infrequently flawed, man
or woman who has suffered a burglary, theft or vandalism, the most abundant
– three quarters – of all crimes in England and Wales and the United States.9
The rights and services which that man or woman seeks (and only sporadically
receives) may not have been overwhelmingly affected in every particular (after
all, they too would have advice, support, protection and information), but they
18 Paul Rock

are often overlooked rhetorically and sometimes excluded practically, and the
rights and services which are awarded have often been significantly skewed
(and in the United Kingdom are becoming more skewed) to favour a small and
unrepresentative, although no doubt very needy and distressed, minority of vic-
tims. The emphasis has been on long-term psychological distress to the neglect
of those experiencing other kinds of need (Winkel and Vrij 1998).

The nature of rights

Let me now consider rights. They too are elusive and multivocal. The New Shorter
Oxford English Dictionary says that a right is:

That which is consonant with justice, goodness, or reason; that which is mor-
ally or socially correct; just or equitable treatment; fairness in decision; jus-
tice. ... Entitlement or justiciable claim, on legal or moral grounds, to have or
obtain something, or to act in a certain way. A legal, equitable, or moral title
or claim to the possession of property or authority, the enjoyment of privi-
leges or immunities.

Rights may be laid out as a spectrum, from the aspirational and the moral claim,
at the one pole, to the demand that is clearly enforceable at law, at the other –
a demand that, in Campbell’s words (2008, p. 1025), serves as ‘an entitlement
authorizing a person to do or to have something’. One imagines that many activist
victims seek a combination of moral claims (victimization is, above all else, a
matter of moral slight) and legal entitlements, if only because of the strong pro-
pensity continually to compare and contrast what is imagined to be the offender’s
favoured lot with that of the victim. In an urgent effort to restore order, mean-
ing and purpose to a disturbed symbolic universe, a universe where conventional
moral assumptions about behaviour and reward have been turned upside down
(see Lerner 1980), the activist may well pitch the irreprehensible victim against
a demonized offender; a life lost against a life still lived; the absence of legal aid
for the bereaved with the provision of legal representation for the defendant; an
impact statement with a mitigation speech; the paucity of victims’ rights with
what is commonly taken to be an abundance of rights for the defendant; and the
creation of a Ministry of Victims to parry a Ministry of Justice (Rock 1998). The
very public worth of the victim is gauged by how he or she is treated in a point-
by-point comparison with the State’s response to the offender. If the offender has
rights in law, they say, so should the victim, and some have argued that the rise of
the American victims’ movement may be understood as a dialectical response to
the campaign for prisoners’ rights waged in the 1970s (Gottschalk 2006).
In practice, however, and with a few apparent exceptions, almost all victims’ rights
fall at the aspirational pole and they take the form of affirmations of principle and
statements about standards of good practice, rather than of justiciable entitlements
(although language is prone to slip back and forth between the one vocabulary and
 Victims’ rights 19

the other). And those declarations of rights tend to follow a common pattern which
has been conveyed and standardized through a succession of conferences, symposia
and meetings;10 one jurisdiction after another following templates supplied by gov-
ernments, nongovernmental organizations11 and transnational bodies; and mediated
by such instruments as the 1985 United Nations Declaration, the European Forum
for Victims Services’ 1996 Statements of Victims’ Rights in the Process of Criminal
Justice, the Council of the European Union’s 2001 Framework Decision and the
proposed Directive of the European Parliament and of the Council Establishing
Minimum Standards on the Rights, Support and Protection of Victims of Crime of
2011 (European Commission 2011; see also Ezendam and Wheldon, this volume).
Documents in Europe, North America and Australasia tend to recite almost identi-
cal sentiments, talking about the right of the victim to be treated with dignity, to be
informed and to confer with the prosecution.
Some of those demands and principles emanate directly from activist victims
who were prominent and persuasive enough to be heard by politicians and policy-
makers. Some were propounded by Victim Support, APAV (Unidade de Apoio à
Vítima Imigrante e de Discriminação Racial ou Étnica) and their sister organiza-
tions in Victim Support Europe, that had a powerful influence on, say, the drafting of
the European Commission’s 2001 Framework Decision. Some, like victim witness
assistance programmes, were installed by agencies anxious about a loss of coopera-
tion with the criminal justice system. A number were simply projected onto victims
by benign or fearful governments who claimed to know what must have been in their
best interests. Criminal injuries compensation, for example, was mooted as a form
of Danegeld in England and Wales in the late 1950s and early 1960s by reformers
apprehensive about what they believed to be the vengefulness of the angry victim of
violence who might obstruct or reverse liberal reforms (Rolph 1958). No one at the
time thought that victims should be consulted about what they actually wanted – it
never occurred to them (Rock 1990) – and pecuniary compensation may, in fact, be
little more than an extremely expensive way of offering victims something that they
might not otherwise have strongly demanded or needed.12
In other cases, the general population of victims have been the indirect benefi-
ciaries of policies and problems largely tangential to them. The victims of vol-
ume crime have tended to lack a mouthpiece (apart, significantly, from the weak-
ened Victim Support in England and Wales and its counterparts elsewhere). Even
organized, activist victims lack the influence of the big battalions of the criminal
justice system – the police, courts and prisons – and their voice has been easily
drowned. Helen Reeves, the erstwhile Chief Executive Officer, and Peter Dunn,
the former head of research, of Victim Support, would claim that it has been a
consequence that policies and programmes for victims in England and Wales have
long been complicated by their entanglement with, and subordination to, other
more pressing goals.
Yet it may only be as a result of a connection with those other priorities, emerg-
ing in more pressing political domains, that the victim’s position will change at
all. The Canadian Federal-Provincial Task Force on Justice for Victims rode to
20 Paul Rock

influence in the early 1980s on the back of a consequential feminist politics of

domestic violence. The rights embedded in the English and Welsh 2004 Domestic
Violence, Victims and Crime Act, Chapter 28, were a rough, late synthesis of
measures that had emerged outside the realm of victims proper to protect vulner-
able and intimidated witnesses, measures that had been catalysed by the scandal
of the notorious treatment in court of a rape victim, and they embodied a pressing
politics of gender; changes in the management of policing after an inquiry into the
ineffectual investigation of the murder of a young Afro-Caribbean man, Stephen
Lawrence, an inquiry that encapsulated the explosive politics of race (Macpher-
son of Cluny 1999); the transformation of victims into consumers of criminal
justice services that flowed out of a wholesale application of business models
to public administration; and the 1998 Human Rights Act, c.42 – none of which
was supposed directly to benefit the victim of everyday crime at all. To be sure, it
characteristically takes the dramatization of a particular incident to award victims
political prominence – criminal justice reform is often driven by apparent crises
seized on by those waiting in the wings – and it is difficult much of the time to
excite the same interest in the general lot of victims abstractly conceived, but there
are consequences. None of those policies had initially been devised to aid victims
qua victims, but their political mandate was markedly more authoritative than
anything victims could have secured under their own flag and it was largely as an
unintended consequence that victims at large acquired some rights or quasi-rights
at all (Rock 2004).

The realpolitik of victims’ rights

Given the frequent political injunction to ‘put victims at the heart of criminal
justice’, echoed, inter alia, in the speeches and papers of the European Commis-
sion,13 Government Ministers in the United Kingdom (see Home Office 2002)14
and the Victims’ Commissioner for England and Wales15 and given that the Crown
Prosecution Service of England and Wales16 proclaims that ‘Championing justice
and defending the rights of victims, fairly, firmly and effectively is at the heart
of all we do’, one should mark that the promise to confer rights has in most (but
possibly not all) jurisdictions been hedged about with qualifications, ambiguities,
disclaimers and procedural complexities. The notion of rights has in practice met
with substantial resistance from lawyers, practitioners and politicians.
To be sure, there has been a significant increase in the number and quality of
services available to victims in England and Wales and elsewhere. But the State
in common law jurisdictions has been chary always of treating those provisions
as rights. It might be perfectly proper to ask whether their translation into rights
would indeed make a difference and whether victims of crime in those countries
do actually seek rights in any numbers, but rights is my theme, and it is cer-
tainly not rights that the victims and witnesses of most jurisdictions have typi-
cally achieved. In practice, the remedy for the discontented victim in many places,
including England and Wales, is not to go to law but to make complaints which
 Victims’ rights 21

may or may not be investigated by bodies which may or may not report back to
the victim. And it appears that recourse to the mechanism of complaint is actually
quite uncommon.
Under section 32 of the Domestic Violence, Crime and Victims Act 2004, the
governing instrument in such cases in England and Wales is The Code of Practice
for Victims of Crime of 2006. Statements about the rights conferred by the Code
sometimes place the word in apostrophes, as if to emphasize their tentativeness
and it is a tentativeness that is confirmed elsewhere. The Code itself does not
actually invoke the word rights but refers instead to ‘the precise standards of care
and support that [victims] can expect to receive from criminal justice agencies’.
Even then it is guarded. Section 1.3 recites that ‘Where a person fails to comply
with this Code, that does not, of itself, make him or her liable to any legal proceed-
ings’ and the annual report of the Crown Prosecution Service for 2010 echoes that
precept: ‘Failure to comply with the Code does not of itself give rise to any legal
proceedings but can be taken into account in determining any question in any
proceedings.’17 Policy staff of the Office of the Victims’ Commissioner told me
that they did not call what was embodied in the Code a series of rights: ‘They’re
a customer services charter.’
Those who are dissatisfied with the level of service provided by the criminal
justice system are told to complain first to the agency which was thought to have
failed them. It is a procedure that is not evenly transparent. The Office of the Vic-
tims’ Commissioner has no tally of the total number of complaints made. The Inde-
pendent Police Complaints Commission is not aware of how many complaints the
police received: in 2009–10, the police forces of England and Wales forwarded to
the Commission the 2,746 most serious complaints they had received and all cases
involving deaths ‘following direct or indirect contact with a police officer’18, but
we do not know how many of those cases fell under the Victim’s Code.19 The Met-
ropolitan Police Service, the largest force in the country, covering a population
of approximately 7.2 million people with some 32,000 officers dealing with just
under 900,000 recorded crimes a year, reported that it received six Victims’ Code
allegations in 2009, 7 in 2010 and none in 2011 up to late August. Despite some
formal criticism of its treatment of victims and witnesses, the Crown Prosecution
Service does not know nationally or regionally, and refused to say locally,20 how
many complaints it receives under the Code.21 The Courts Service of the Ministry
of Justice knew only the aggregate number of complaints the Ministry as a whole
received where the party was the victim (there were 191 complaints in the finan-
cial year 2008–09, 64 relating to non-payment of awards by the defendant; seven
in 2009–10; and none at all thereafter). Even if complete data were available, it
is evident that the numbers involved are very small and it would be difficult to
interpret their meaning. Small numbers could signify high levels of satisfaction
with a service, or alienation from the complaints procedure; large numbers could
signify discontent or confidence in the procedure.
Victims not satisfied with the outcome of that first stage may then complain
to their Member of Parliament who may look into the matter or simply refer it
22 Paul Rock

Table 1.1 Cases received by the Parliamentary Ombudsman under the Victims’ Code
2009–2011a

Received
Victims’ Code cases 2009/2010 2010/2011 Total
Crown Prosecution Service 4 5 9

Cumbria Probation Trust 1 1

Greater Manchester Police 1 1

Her Majesty's Courts and Tribunals Service 3 3

Kent Police 1 1

Metropolitan Police Service 1 1 2

National Probation Service 1 1 2

Police 8 3 11

West Yorkshire Police 1 1

Witness Care Units 2 2

Grand Total 15 18 33

Note
a I am grateful to the office of the Victims Commissioner for supplying this information.

directly to the Parliamentary Commissioner, who has a limited authority to under-

take investigations and make recommendations, but not compel action, about
cases breaching the Code. Between 2009 and 2011, at a time when the police
recorded a total of some eight and a half million offences and the ombudsman
dealt with a total of some 48,000 complaints from all quarters,22 33 complaints23
were made under the Victims’ Code, see Table 1.1.
In total, the Ombudsman has considered 58 complaints concerning the Code
since its foundation in 2006, of which only two were investigated, the others fail-
ing to qualify because they fell outside the Ombudsman’s remit or outside the
correct process. Only one complaint has been upheld since 2006.24
It is clear that, in England and Wales, victims make almost no recourse to the
Ombudsman when they believe their rights or expectations have been breached;
and that the outcome of any such recourse is more than somewhat paltry. It is
intriguing to enquire why this should be so, and, in pursuing the question, I shall
remain largely with the case of England and Wales, not only for simplicity’s sake
 Victims’ rights 23

but because it is with those countries that I am most familiar. I write, it should also
be emphasized, not as a lawyer, but as a sociologist.
The first and most obvious reason why victims have been denied substantial
and uncluttered rights is that they would be expensive to introduce. A bad prec-
edent was thought in Government to have been created by the establishment of the
criminal injuries compensation scheme which had been initially costed by Leslie
Wilkins, then a government statistician, at £150,000 per annum. Now, and despite
attempts to trim costs by replacing common law damages by a tariff scheme and
by raising the threshold of eligibility, criminal injuries compensation amounts
annually to £280 million. It is in effect what the financially-prudent civil servant
detests above all, a politically sensitive, open-ended, uncontrolled and demand-
led scheme, having had to be supported in 2010–11 by an additional grant of £70
million made available by the Ministry of Justice (Criminal Injuries Compensa-
tion Authority 2011). At a time of radical economic cuts, when funding has been
withdrawn from some victims’ groups altogether, when criminal injuries compen-
sation itself has been reduced,25 no government department in England and Wales
would countenance the proposition that victims should be accorded a new right
freely to go to law and, in the process, seek an indefinitely large number of sums
in monetary compensation for a breach of an entitlement. It would not only be
costly but, as important, it might also be taken to support the disturbing proposal
that the State accepted legal liability for the crimes committed against its citizens.
The State, emphasized an internal Home Office paper in 1999, ‘is not liable for
injuries caused to people by acts of others’ (in Rock 2004, p. 267).
It was precisely for that reason that the somewhat elliptical method of placing
a statutory obligation on criminal justice agencies to provide a standard of service
to victims of crime was introduced by the 2004 Act. One of a number of internal
draft papers that anticipated the Act’s introduction argued in 2000 that:

There is some hesitation about using the language of rights in a specific way
because of the increasing expectation of litigation or financial compensation
if those rights are not met... The Government is not convinced that legally
enforceable rights, with attendant rights to take civil action; to sue and to
receive compensation if they are not met, is the route to take.

And, the then Lord Chancellor commented:

We should not set up a new comprehensive tier of legally enforceable rights

for victims. This would establish a new category of litigation calling for legal
aid [and] highly attractive to civil rights lawyers who would be enthused by
opportunities to assert deficiencies in the criminal trial process....
(in Rock 2004, pp. 534–535)

The second, and entirely familiar, reason for baulking at the idea of legal rights
flows from the State’s assertion of ownership in crime and criminal procedure
24 Paul Rock

in common law jurisdictions. Ever since the consolidation of the nation state in
the sixteenth century, crime has been deemed to be an affront to the community
or society metaphysically conceived (Jeudwine 1917). Paraphrasing William
Blackstone (1769, pp. 5–7), Lindsay Farmer, Professor of Law at the University
of Glasgow (2008, p. 263) describes crimes as ‘violations of rights or duties
owed to the whole community...’ [emphasis in the original]. Trials are joined
between the Queen and the defendant; justice rests on the tripod of judge, pros-
ecutor and defence counsel (Burger 1971), and the role of the alleged victim
is merely to attest to what he or she claims may have happened, as if he or she
were no more than the vessel on which an assault on the collectivity was waged.
Although some would have it otherwise, victims are not a party to proceedings
in common law jurisdictions, nor does the State act for the victim. The Code for
Crown Prosecutors lays down under Section 4.19 that ‘the prosecution service
does not act for victims or their families in the same way as solicitors act for
their clients, and prosecutors must form an overall view of the public interest’.26
Victims can have no privileged interest or claim. Neither can they have a reason-
able expectation of any such claim in the future. The bestowing of more gener-
ous legal rights and recognition on victims is thought dangerously to place in
jeopardy the proper allocation of rules, roles and relations of the criminal justice
system (see Ashworth 2000).
It is a perception of danger that is deeply entrenched in the structure and occu-
pational culture of the legal profession of England and Wales. Solicitors with a
criminal practice are wholly engaged in working for the suspect and defendant.
Members of the Bar are free-lance advocates who, although they do specialize,
may work for defence or prosecution. It is a consequence of that bipartisan divi-
sion of labour that lawyers are acutely and continually exercised by the problem of
balance, of what they call the ‘equality of arms’ and of protections for the accused.
Conservative, liberal and radical barristers, solicitors and judges and their col-
lective bodies, such as the Bar Council, Law Society, Liberty and JUSTICE, are
doughty in shielding what they conceive to be the rights of defendants. There is
little of the crusading district attorney in the prosecutions mounted in the Crown
Court, but there is a presupposition – valid or invalid – held by prosecutors and
defence counsel that according victims’ rights would almost certainly infringe on
the rights of the defendant.
The perception of danger stems from another source as well. Although I have
observed in practitioners no absence of compassion or, indeed, admiration, for
the victim, there are yet traces of an ineffaceable distrust in the legal and offi-
cial mind. Victims retain vestiges of David Downes’ pariah about them and
they are vestiges with old roots. Before the creation of the office of Director of
Public Prosecutions in 1879, although crime was still defined metaphysically
as an injury to the community, victims were obliged to confront defendants as
private prosecutors in what could be unmediated antagonism and there was a
marked propensity by professional lawyers at the time to characterize them as
malicious, venal, frivolous, self-interested and vengeful. Victims might resort to
 Victims’ rights 25

blackmail and extortion. The system opened the ‘door to bribery, collusion and
illegal compromises’ (Her Majesty’s Commissioners on Criminal Law 1845,
p. 14). The utilitarian reformer, Henry Brougham, called private prosecution
a ‘perversion of the criminal law for personal and guilty purposes’ (in Select
Committee on Prosecutors 1855, p. iii).
We know almost nothing about the transmission of such typifications within
legal circles over the generations. There may well be no continuity at all. But there
are those who seem even now to relay disturbing echoes of those passions. Vic-
tims are from time to time still tainted by that imagery of the harpy bent (despite
some contradictory evidence (Hough and Roberts 1999)) on what Jan van Dijk
once called ‘victimagogic programmes’ (1988, p. 117).27 Their allegedly malign
presence has been the subject of peculiar condemnation in North America,where
memories of lynching and popular justice remain in force (see Garland 2005).
As a result many politicians, practitioners, lawyers and academics are more
than a little nervous about empowering the victim. Indeed, they consider it to be a
vital duty of a professional criminal justice system to insulate itself and protect the
defendant from what the American scholar, Marie Gottschalk, called the ‘public’s
passion for revenge’.28 Whilst defendants tend to be regulated in the trial process
(Ericson and Baranek 1982), and judges, police, court staff and lawyers are under
formal and informal discipline, victims are seen as potentially rogue elements –
members of a fluid, shifting and relatively anonymous public, assumed to be lay
people who are foreign to the ways of criminal justice and the courthouse, locked
uncontrollably into the conflicts of the adversarial system, vindictive, untrustwor-
thy, unreliable and volatile, prone to emotional displays and unguarded outbursts,
speaking a language which is not forensic, rational or dispassionate, and liable to
upset the expressive order and proper workings of criminal justice (Doak 2005,
p. 298). It is perhaps not so remarkable that those typifications should have
emerged in that fashion because victims will almost invariably be seen by prac-
titioners just at the moment when they are exposed to the greatest tension: in the
immediate aftermath of a crime or in the courtroom. In the 1980s, Home Office
civil servants sought to protect their Ministers from activists, known internally as
the ‘angry victims’, lest they be exposed to outbreaks of ‘pushing’ reinforced by
unseemly barracking. After the breaching of that wall and the establishment of the
Victims Advisory Panel, victims do now shout at politicians and officials.
It has followed that, although police family liaison officers and other practition-
ers may develop an acquaintance, even a warm acquaintance, with victims and
their families, there is a propensity in the criminal justice circles of England and
Wales ever to stay wary, to keep victims at bay and in check, the police, prosecu-
tors and staff of the Witness Service coming in effect to play the sheepdog. Vic-
tims are outsiders not insiders, partisans not noncombatants, and they cannot, it is
believed, always be trusted to behave responsibly or to police themselves. Align-
ment with them could be compromising. Court staff have long been anxious not to
undermine their neutrality in their dealings with them. Until recently, prosecuting
counsel would not even speak to them.
26 Paul Rock

In England and Wales, moreover, there may be a lingering element of class

disdain in that process of distancing: insiders will tell one that judges and counsel
tend to be upper or upper middle class, solicitors middle class, the police ‘respect-
able’ working class or lower middle-class, and victims quite frequently proletar-
ian, members of the mobile vulgus. Robert Reiner (2000, p. 138) remarked that
‘people at the base of the social hierarchy… are disproportionately the complain-
ants, victims or offenders processed by the police’. How else is one to interpret
the Bar Council’s response to a government consultation paper floating the idea
of victim impact statements?

The proposal that victims should have a say in decisions as to whether pros-
ecutions are started, terminated, and what charges are brought is potentially
inimical to justice... Victims by definition will be emotionally vulnerable. A
proportion come from disadvantaged sections of society and will be of mod-
est intellectual and educational attainment.

Judges, including a former and then current Lord Chief Justice, were also reported
to be uneasy about possible intrusion: ‘They say that the courtroom would become
an emotional arena; that it would falsely raise victims’ expectations of being able
to influence the sentence; and that it would extend rights of audience in the courts
beyond the legal profession’ (The Times 24 December 2005). The scheme’s aban-
donment, despite the initial enthusiasm of Ministers, signified that there is a Rubi-
con that still may not be crossed. Victims are not to be trusted as full participants
in the criminal justice system of England and Wales. They may not have a voice
in decisions to charge, in sentencing or parole. What claims they may have are
not enforceable. Staved off, corralled and feared, it may well be some time before
victims are granted anything that smacks of legal rights.

Notes
1 I am most grateful to Sarah Kincaid and Rod Hill of the Ofce of the Victims’ Com-
missioner for general advice and to Peter Dunn, Meg Garvin, Marie Manikis, Heather
Strang and Tim Newburn for their advice and comments on earlier drafts of the paper on
which this chapter is based.
2 A/RES/40/34; www.un.org/documents/ga/res/40/a40r034.htm [Accessed on 2 Septem-
ber 2011].
3 www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/
crime-research/hosb1011/hosb1011snr?view=Binary [Accessed on 4 September 2011].
4 www.statistics.gov.uk/downloads/theme_social/Social_Trends36/ST36_Ch09.pdf
[Accessed on 4 September 2011].
5 Marie Manikis told me by email on 6 September 2011 that: ‘Lois Haight who chaired
the Presidential Task Force on Victims of Crime just informed me that most victims the
Task Force spoke to were victims of violent crimes. However, they also had quite a few
burglary victims and parents of murdered children and parents of children who suffered
sexual abuse. They also heard from victims of rape, robbery, domestic violence and
kidnapping. She does not recall any victims of misdemeanours.’
 Victims’ rights 27

6 www.auditcommission.gov.uk/nationalstudies/communitysafety/Pages/victimsandwit-
nesses.aspx [Accessed on 29 June 2008].
7 www.justice.gov.uk/downloads/publications/statistics-and-data/criminal-justice-stats/
criminal-stats-quarterly-dec10.pdf [Accessed on 30 August 2011].
8 www.presidency.ucsb.edu/ws/index.php?pid=34171#axzz1UfXAR0g0 [Accessed on 4
September 2011].
9 Where that gure of 77 per cent also obtains. See Criminal Victimization in the United
States 2008 Statistical Tables, National Crime Victimization Survey, Ofce of Justice
Programs, Bureau of Justice Statistics, Washington D.C., March 2010, NCJ 227669.
10 Sometimes, that succession is described as if it should be read as a powerful and irre-
sistible motor of change in its own right. See International Study Institute on Victimol-
ogy (1976).
11 See the European Forum for Victims Services; Statements of Victims’ Rights in the
Process of Criminal Justice; The Social Rights of Victims of Crime; and Statement of
Victims’ Rights to Standards of Service.
12 Joanna Shapland (1984, p. 144) argued that: ‘If the money was regarded as compen-
sation... then it was not the actual receipt of the money that was important, but the
judgment which that award represented about the suffering and position of the victim.’
Some fourteen years later, an Australian Capital Territory Victim Support Working
Party concluded that ‘for some victims, personal support and practical help may be far
more important and appropriate than nancial compensation’ (Victim Support Working
Party 1998, p. 18).
13 http://ec.europa.eu/commission_2010–2014/reding/victims/index_en.htm [Accessed
on 6 September 2011].
14 www.cjsonline.gov.uk/downloads/application/pdf/CJS%20White%20Paper%20-%20
Justice%20For%20All.pdf [Accessed on 8 September 2011].
15 www.thersa.org/events/video/vision-videos/louise-casey-putting-the-victim-at-the-
heart-of-the-criminal-justice-system [Accessed on 6 September 2011].
16 www.cps.gov.uk/victims_witnesses/ [Accessed on 6 September 2011].
17 www.cps.gov.uk/legal/v_to_z/victims_code_operational_guidance/#a01 [Accessed on
6 September 2011].
18 www.ofcial-documents.gov.uk/document/hc1011/hc01/0144/0144.pdf [Accessed on
6 September 2011].
20 Rather enigmatically, I was told that: ‘Unfortunately we do not hold a reliable set of
data on complaints received under the Code of Practice for Victims. The reason for this
is because the data greatly underestimates the actual number of complaints received
which apply to the Victims Code and for that reason we would not be able to release
this information.’ Email from a research ofcer at the IPCC received on 18 August
2011.
21 None of the six local CPS branch ofces in London replied to my query about com-
plaints received under the code.
22 I received an email on 15 August 2011 from the Correspondence Unit, Crown Prose-
cution Service, to the effect that: ‘The CPS has no central records of the total number
of complaints under the Victims’ Code. Complaints can be sent directly to any of our
regional ofces across England and Wales and we do not currently have any mechanisms
in place to record the number of complaints that specically mention the Victims’ Code.’
When I wrote to one such regional ofce, CPS London, I received an identical reply dated
22 August 2011.
23 www.ombudsman.org.uk/annualreport/ [Accessed on 6 September 2011].
24 I am grateful to Jane Stephenson of the Public Affairs Department, Parliamentary and
Health Service Ombudsman, for compiling this table (email of 4 August 2011). She
added: ‘We reported on one investigation involving the Victims’ Code last year, which
28 Paul Rock

involved complaints again HM Prison Service and the National Probation Service. We
upheld the complaints against both those organisations.’
25 Based on an email from Rod Hill of the Ofce for Victims and Witnesses dated
13 September 2011.
26 www.bbc.co.uk/news/uk-14949226 [Accessed on 22 September 2011].
27 www.cps.gov.uk/publications/docs/code2010english.pdf [Accessed on 1 September
2011].
28 For examples of those fears, see Fattah (1986), Jackson (2003), Matravers (2010) and
Tonry (2010).
29 www.barcouncil.org.uk/document.asp?documentid=3437&languageid=1 [Accessed
on 3 September 2011], www.tnr.com/book/review/peculiar-institution-david-garland
[Accessed on 5 September 2011].

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Chapter 2

Respecting victims of crime

Key distinctions in a theory of victims’ rights
Antony Pemberton

Introduction
Recent decades have seen an increasing role for victims of crime in the criminal
justice procedure (Groenhuijsen and Letschert 2008). This is evident in legisla-
tion and practice, in adversarial and inquisitorial systems and at the national and
international level. Where in the 1970s the victim may have been correctly viewed
as the forgotten party of the criminal justice process, this is no longer an accurate
description in many jurisdictions. The ‘emancipation’ of victims of crime (Van
Dijk 2009) has been felt far beyond the criminal justice system. In sociological
and philosophical analyses of Western society at the dawn of the twenty-first cen-
tury the victim is often considered to be a central figure (Nolan 1998; Boutellier
2002; Furedi 2004). Richard Rorty (1989), for instance, is well known for finding
‘Are you suffering?’ to be the central moral question of our times.
The upsurge of the victim is not always welcomed. In fact, in most societal
analyses the perceived central position of victimization (processes) is viewed with
concern, linked to passivity, overuse of therapeutic measures and irrational ‘moral
panics’ (e.g. Best 1999; Furedi 2004). The role of victims within the criminal justice
system has had its fair share of criticism as well (Elias 1993; Sarat 1997; Ashworth
2000). Instruments granting victims participation rights in the criminal justice pro-
cedure, rather than increased access to information or compensation, have regularly
been the subject of vigorous debate (e.g. Pemberton and Reynaers 2011).
The introduction of victims’ rights in the criminal justice process has not, as a
rule, been informed by a systematic rationale. Initially pragmatic criminal justice
concerns – for instance maintaining public support for criminal justice agencies
or increasing/maintaining reporting rates – were the main driver (see Wemmers
1996). Where reference is made to notions underlying victims’ rights, it is argued
on the basis of the importance of respect for the victims’ dignity and/or a specific
instance of the general sympathetic reaction to the harm suffered by victims of
crime (Groenhuijsen and Letschert 2008; Groenhuijsen and Pemberton 2009).
However these rationales do not offer much guidance in the development of a
theory of victims’ rights, nor do they provide much clarity in the debate between
proponents and opponents of victims’ rights. Key is that neither ‘respect’, nor
 Respecting victims of crime 33

‘sympathy, nor ‘harm’ are straightforward and/or unproblematic when viewed in

connection to the rights of victims of crime in the criminal justice system.
The implicit assumption that the term ‘respect’ is self-evident contributes to a
loose use of the term, which in turn hampers a meaningful discussion of its mean-
ing and function within the canon of victims’ rights.1 Instead further examination
of respect as a construct is in order. Following the illuminating observation of
Darwall (1977), there are two relevantly different forms of respect: recognition
respect and appraisal respect. This chapter will argue that the respect due to vic-
tims of crime is a clear instance of the former, rather than the latter, while confus-
ing the two forms is a regular feature of both observers and victims’ own views of
an appropriate role in the criminal justice system.
Similarly, viewing sympathy with the harm done to victims as a (sufficient)
reason for offering them rights in a justice procedure, is also based upon an
implicit assumption, which should be further scrutinized. Here a key distinction
lies between sympathy and empathy (Wispé1986). These concepts are similar but
distinct, with the former being a vital element of the urge to alleviate another per-
son’s suffering, while the latter grounds what Bottoms (2010) called the duty to
understand the victims’ perspective.
Finally there is the distinction between harmfulness and wrongfulness (e.g. Duff
2001a, 2003). Suffering victimization by crime involves harm, but wrong as well.
As these co-occur it is no sinecure to untangle them. Nevertheless I will argue that
their role in victims’ participation in criminal justice is different. I will argue that
the experience of wrongfulness is intimately linked to the justification of involving
victims within criminal justice, as a qualifier, while the experienced harm is a better
base for shaping the manner and the extent of involvement, i.e. as a quantifier.
Each of these distinctions is examined in turn. Throughout the chapter the con-
nection with the practice of victims’ rights is made, to illuminate the relevance to
current debates concerning victims’ rights.

Recognition and appraisal respect

Distinguishing recognition and appraisal respect

Darwall (1977) distinguished two different ways in which persons may be the
object of respect. The respectful behaviour expected from each of us when we
offer our seat in the bus to a senior citizen, step aside when a blind person is mak-
ing his/her way through a crowded railway station, or follow the instructions of a
police officer in traffic are all instance of respect of a qualitatively different order
than the feelings of respect we have for substantial achievements, like those by
artists, athletes and academics.2
In Darwall’s terms the former is recognition respect, while the latter is
appraisal respect. In general terms recognition respect for people consists of
a disposition to weigh appropriately in one’s deliberations some fact about a
34 Antony Pemberton

person – it can apply to persons as a whole, but also to different aspects of the
person – and act accordingly. The latter point is important: recognition respect
carries with it a duty that constricts the range of (morally) appropriate behav-
iour. Without this behaviour respect for the (feature of the) person is lacking.
Importantly: to have recognition respect for a person as such is not giving him
credit for anything in particular, recognition respect is not based on merit.
Recognition respect’s object is at its core, a fact, which factors in deliberations
of how to act. Inappropriate consideration of that fact amounts to a failure to meet
a moral standard. Recognition respect therefore restricts the scope of behaviour.3
In contrast, appraisal respect’s exclusive objects are (features of) persons which are
held to manifest their excellence as persons, engaged in a specific pursuit (Darwall
1977, p. 38). Appropriate grounds for appraisal respect are that the person has mani-
fested characteristics which have made him deserving of such positive appraisal and
that these characteristics can be attributed to a person’s character.4 This respect does
not necessarily imply any action on the part of the person respecting the other: the
attitude of positive appraisal of that person constitutes the respect. Achievement will
not automatically lead to appraisal respect. High achievement sportspersons might
achieve a lot, but may not be respected due to other aspects of their behaviour.5
Not every positive attitude amounts to respect. This is particularly true if pos-
itive attitudes towards another person are conditional on that person serving a
function in some self-serving pursuit. As a matter of definition, respecting a per-
son does not include valuing someone for the use they have for our own ends.
The degrees of respect involved in recognition and appraisal differ. One’s
appraisal respect for a person may be higher or lower than for another, or it may be
absent altogether, while in the case of recognition respect it is instead the weight
that the fact ought to have in one’s deliberations of what to do that matters. All
persons as such should be treated equally and accordingly to the extent this fact
can be said to be true about them.

Respecting victims as recognition respect:

a straightforward matter?
Viewed through Darwall’s lens it is not difficult to conclude that the respect owed
to victims of crime is a form of recognition respect. Key is respecting the fact that
someone was victimized and acting upon that fact. Becoming a victim of crime
cannot plausibly be viewed as an achievement, while respecting victims of crime
involves something more manifest than a positive attitude. Respecting victims
involves a moral duty to give appropriate weight to the fact that someone has been
victimized in our behaviour towards them, rather than in the experience of respect
itself. If victims’ rights in the criminal justice process are grounded in respect, it
is recognition respect that is intended.
However, respect for victimization by crime has confusing elements related
to the nature of the appraisal of the fact of victimization. The fact of victimiza-
tion by crime involves an appraisal itself. I am not referring here to theories of
 Respecting victims of crime 35

the social construction of crime and victimization (e.g. Walklate 2006), but to
the necessity, given existing definitions of these concepts, to assess whether or
not a given situation meets the criteria to fall into these categories. This is true of
other forms of recognition respect as well. If someone’s blindness should play
a role in our behaviour towards a person, an assessment of blindness is in order.
This will be less or more extensive depending on whether we are merely step-
ping aside to let the other pass on a busy street or are reviewing their eligibility
for a large insurance payment.
There are practical difficulties in determining the fact of victimization. By defi-
nition it happened in the past and often does not leave any visible traces in the
present, and as most observers will not have witnessed the fact of victimization
itself, they will have to rely on other sources than their own perception to ascer-
tain this fact. This is further complicated by the fact that for a variety of reasons
victims may not want to share the fact that they are victims themselves (see for
instance Brewin et al. 2000) while the (psychological) effects of victimization
often diminish with time (e.g. Bonanno et al. 2011).

Respecting the consequences of disrespect

Aside from these practical difficulties, the assessment of the fact of victimiza-
tion by crime and the consideration of its bearing on moral behaviour becomes
more complicated, due to the fact that it is defined by (im)moral behaviour itself.
Respecting the fact of victimization means offering respect for the fact that some-
one else did not do so. Criminal victimization involves a strong form of disre-
spect: the offender’s disrespect of the victims’ rights as a person. As I will argue,
the wrongfulness, the immorality of the behaviour of the offender is a defining
characteristic (Duff 2001a, 2003; Simester and Von Hirsch 2011). This is one
of the reasons why respect in the treatment of victims of crime is so significant:
while offering respect to a blind person does not contribute to his or her capability
to see, offering respect to a victim may impact the effects of victimization. Social
acknowledgement and support serve as protective factors in the development of
psychological ailments in the aftermath of victimization (Brewin et al. 2000).
However, not only the offender’s behaviour is a factor; the victim’s moral or
immoral behaviour plays a role as well (Simester and Von Hirsch 2011). This
is apparent in cases in which self-defence is used as a justification (e.g. Chan
and Simester 2005), which may in effect lead to a reassessment of the roles of
victim and offender, but it will often be necessary to review the victims’ own
behaviour to establish whether or not a crime has been committed, whether or
not the victim substantially contributed to his or her own victimization, while –
probably more so in the latter than in the former – a victim’s own moral conduct
will factor in these assessments. More generally, the evidence surrounding the
just world theory shows that when faced with an instance of injustice observers
will review the conduct of the person suffering the injustice to see whether he
36 Antony Pemberton

or she is – in whole or in part – to blame for the occurrence of injustice (Lerner

1980; Hafer and Begue 2005).

Confounding recognition and appraisal respect in reaction

to victimization
What is key in the current discussion is that assessing the fact of victimization
includes an appraisal of the victims’ conduct: a victim must be sufficiently blame-
less for what happened to him or her, for the fact of victimization by crime to be
true. Although this appraisal of the victim’s behaviour is, in essence, irrelevant
beyond what is necessary to ascertain the fact of victimization, it appears that in
both observers’ and the victim’s own views this appraisal is easily confused with
something akin to appraisal respect.
I can introduce one aspect of this confusion with an anecdote which I person-
ally witnessed at the World Society of Victimology Symposium in Stellenbosch in
South Africa in 2003. The speaker at one of the plenary sessions asked the victims
in the audience to stand up, after which he called upon the rest of the audience to
applaud them, because in his view their victimhood made them ‘the true heroes’.
Both history and fiction abound with instances of people showing almost superhu-
man resilience in the face of extreme adversity, from Homer to Terry Waite, from
Snow White to Nelson Mandela. The hero-victim is a true iconic figure, with the
trial by fire being one of the main tests by which his or her heroic character comes
to the fore.
The point is, however, that in these cases the resilience shown and accompa-
nying actions following victimization should be distinguished from the victimi-
zation itself. One can admire the perseverance and the hardiness in the aftermath
of victimization, but this is relevantly different from offering respect for the
fact of victimization. The victimization here is better understood as a factor that
increases the achievement and strengthens the feeling of admiration. A parallel
scenario is the role poverty plays in the life of the central figure in ‘from rags
to riches’ narratives. The poverty-stricken person, due to his or her own ingenu-
ity, capacities and entrepreneurship manages to amass a fortune. The similarity
extends to the observation that the actions following victimization imply that
the hero-victim is in fact no longer a victim at all, like the from rags to riches-
actor is no longer poor.
These observations can hardly lead to problems for the hero-victims them-
selves, but may have more troubling consequences for others. The expectation
that victimization may ennoble those who experience it can easily morph into a
normative demand. The epithet ‘true hero’ then sets a standard which many vic-
tims may not reach, and the resulting lack of appraisal respect may bode poorly
for the extent to which recognition respect is forthcoming. Indeed the paradoxical
situation may emerge that respect – for victims – is given to the hero-victims who
do not need it, while it is withheld from those who do.
 Respecting victims of crime 37

This is eminently clear in the situations where negative appraisal of unrelated

features of the victims’ character may lead to a withholding of recognition respect
towards victims of crime altogether. Not only are the actions of victims after vic-
timization subjected to scrutiny, but also aspects of their life-story before they were
victimized. An example of the latter is the treatment of victims who have been
criminals in the past. For instance: the UK bars former felons from receiving com-
pensation for victimization by violent crime, even if their own criminal behaviour
is unrelated to the crime visited on themselves (Miers 2007). As I will note below,
this is particularly misguided, for it entails using (the lack of) appraisal, rather than
recognition respect, as a base for granting or withholding a person rights.
Academic discourse is also not immune. It is a regular feature of victimologi-
cal literature to find examples, sometimes anecdotes, but also more fully fledged
research results, of victims displaying – at least in the eyes of the authors – praise-
worthy characteristics such as extending forgiveness, emphasizing conciliation
and the like. Subsequently these are held up to be an example of what all victims
can and should aspire to; and of which victims should be convinced.6
Confusing recognition and appraisal respect is not restricted to observers of vic-
timization. It is also visible in the behaviour and demands of victims themselves.
It has been well documented that the experience of victimization may bring about
a sense of entitlement in those who experience it (Zitek et al. 2010), which is
connected to the positive relationship between previous victimization and future
wrongdoing (Zitek et al. 2010).7 To be true, this does not apply to all (or even
most) victims (see Van Dijk 2006; Vollhardt 2009 for evidence of ‘posttraumatic
altruism’), but the point here is that for many victims the victimization experience
itself becomes an achievement worthy of appraisal respect.
In sum then, the importance of distinguishing between recognition respect and
appraisal respect in the experience of victims of crime is that the respect due
to victims is an example of the former, while the two are easily and regularly
confused. Both the determination of the fact of victimization and the distinction
between victimization itself and one’s reaction to victimization have features that
contribute to this confusion. Moreover, respect for the fact of victimization has the
intriguing quality that it is due to the fact that someone disrespected the victim,
which in turn contributes to the importance of respect in these cases. Not only is
respect a necessary component of the rights offered to victims, but it also inde-
pendently impacts the experience of (recovery) after victimization.

Sympathy for victims’ plights; empathy for

victims’ rights

Distinguishing sympathy and empathy

A concept closely related to respect is empathy (Darwall 2006). Indeed the golden
rule ‘Do not unto others, as you would have not done on yourself’ is intimately
connected to empathy, which can be defined as ‘the attempt of one self-aware to
38 Antony Pemberton

understand the subjective experiences of another self’ (Wispé 1986, p. 318).8 It

involves the recognition of another world of experience, acknowledging another’s
reality and humanity and the awareness that the self is not exempt – at least in
principle – from finding oneself in the same position (Nussbaum 2001).9 This
implies the necessity to understand without judgement the positive and nega-
tive experiences of another self and the acknowledgement of the fact that these
emotions and reactions are often unclearly understood. One important element of
empathy is therefore a process of attempting empathic accuracy.
Sympathy is similar to empathy, as it also concerns the heightened awareness
of another person, while both sympathy and empathy are generally taken to imply
a benevolent stance towards a person.10 However sympathy and empathy can be
relevantly distinguished from each other. Wispé (1986, p. 318) considers sym-
pathy to refer to ‘the heightened awareness of the suffering of another person as
something to be alleviated’. It therefore includes an increased sensitivity to the
emotions – but emotions of a particular kind! – of the other person and the urge
to take whatever mitigating actions are necessary. It is hard to envision sympathy
without a measure of empathy: one can only reasonably be assumed to be moved
by another’s suffering if one can at least partially understand the other’s plight.
Table 2.1 provides an overview of the key characteristics of sympathy and empa-
thy (drawn from Wispé 1986).11 Crucial is the fact that empathy is concerned with
(understanding) the point of view of the other, while sympathy is concerned with
increasing the well-being – from a negative point of departure – of the other, irre-
spective of the other’s own view. The motivating emotion in sympathy is the sym-
pathizer’s own experience, the extent to which someone is moved by the other’s
suffering, while in empathy the locus is the subjective experience of the other.
Whereas sympathy recognizes another’s well-being as a relevant considera-
tion, empathy recognizes others as worthy of equal respect. The latter will often
be motivated by well-being as well, but not primarily what is for someone’s good,
but rather for what he/she values and holds good from his/her point of view as an
equal independent agent. Sympathy on the other hand refers to a care response,
which may include doing what’s best for a person, even against his/her will.12

Sympathy in the aftermath of victimization

If not by definition, than at least in a very large majority of cases, victimization
by crime involves a form of suffering, in an emotional, physical and/or financial
sense. Sympathy for this suffering plays a large role in the care-response to vic-
tims. Offering ‘tea and sympathy’ has been a staple element of victim support,
although it is regularly used as a derogatory classification (for instance Fattah
1999). In turn, the sympathy involved in this care response is an important benefi-
cial, even protective factor in victims’ experiences (Brewin et al. 2000). The fact
that the surroundings are often not as sympathetic as victims may have expected
is a prominent source of so-called secondary victimization. This reaction may also
be due to the complexities involved in reacting to victimization: a large body of
 Respecting victims of crime 39

Table 2.1 Comparing key characteristics of sympathy and empathy

Sympathy Empathy
Sympathiser is moved by Empathiser reaches out

To substitute another for oneself To substitute oneself for another

To know what it would be like To know what it would be like if I were

to be the other person the other person

I am the other person I act as if I were the other person

Duty to help other’s well-being, Duty to understand

defined by me

Relating Empathic accuracy

Care Respect

Source: Based on Wispé (1986).

literature illustrates that the aversion that observers feel at the injustice suffered
by victims is at odds with the urge to relieve the suffering that was caused by the
injustice (Loewenstein and Small 2007).
But sympathy has its own ‘dark side’ as well. It involves a degree of paternal-
ism (Feinberg 1984). The observer places his/her own view of what should be
done above the views the victim may have, and uses his/her own feelings as a
guide to action, rather than trying to accurately ascertain what the victim’s feel-
ings and views on his or her needs may be. Although sympathy is caused by the
perception of another person’s suffering, it is driven by the distress felt by the
observer, upon viewing this suffering, rather than the perspective of the person
suffering him or herself.
Sympathy, moreover, pre-determines the focus and direction of the victim’s
perspective. Wispé (1986, p. 319) notes:

It is exactly the psychological process that involves the painful awareness

of someone else’s affliction as something that needs to be relieved. This
precludes sympathizing with someone’s happiness, because why, except for
malicious reasons would one want to terminate someone’s happiness?

This means that approaching victims through sympathy restricts victims and actions
to the benefit of victims in terms of their suffering, neglecting the fact that victims
may have needs and wishes that are either not directly rooted in their suffering, or
are not related to coping with or relieving this suffering. For all sympathy’s graces,
40 Antony Pemberton

therefore, in supporting and assisting victims it needs to be harnessed: its deploy-

ment should recognize and preferably minimize its inherent paternalistic impulses.

Empathy, rather than sympathy in victims’ rights

That is particularly true of victim participation in criminal justice process. Sym-
pathetic concern plays a role in the kind of rights made available to victims in the
criminal process, and/or in the way these rights are implemented. Many victims’
rights across jurisdictions propose to contribute to victims’ therapeutic well-being,
as a victim-focused branch of ‘therapeutic jurisprudence’ (Wexler and Winick
1996; Erez et al. 2011). As I have argued previously, this can be to the benefit of
victims, where the proposed therapeutic goals mesh well with victims’ interests
in criminal justice and where the proposed mode of participation is realistically
connected to psychological processes.13 In addition the modes of participation
often include measures taken to prevent forms of secondary victimization (e.g.
Laxminarayan 2012) and to increase the experience of benefits. An example is the
support victims may receive in the Netherlands when submitting a victim impact
statement (Lens et al. 2010).
However, it is important that both choice and use of rights is underpinned by
empathic respect: the victims own standpoint, including the values that hold good
from his/her point of view as an equal independent agent, should remain the cen-
tral focus. If, to the contrary, sympathy was allowed to play a determining role
in the use of existing rights, it would diminish the extent to which they actually
amount to rights at all. Instead of allowing the victim to choose whatever course
of action they find best, for whatever goal they deem fit, given the available pos-
sibilities, both goal and action would be determined by someone else.
This paternalist approach can then be compounded by the mistake of viewing
every choice and action in a victim’s life as a function of coping with his or her
suffering, while there is no reason why coping with suffering would be the sole
or the main reason for participation in a criminal justice procedure (see also Daly
2014, this volume).14 Indeed, the pursuit of justice after victimization is surely a
worthy end in itself, rather than a means that needs its justification in the extent to
which it reaches therapeutic goals?
What is lost when this mistake is made can be exemplified by the following
quote. In an (otherwise exemplary) review of restorative justice (RJ) practices,
Sherman and Strang (2007, p. 62) consider the restrictions of RJ for victims of
crime, of which they find one to be: ‘And even when offenders are willing to
engage in RJ, some victims (or their families) will prefer not to. RJ cannot help
those who will not help themselves.’ This does more than just misrepresent the
evidence on RJ, as any positive therapeutic effect depends upon the self-selec-
tion, the choice, of victims participating (e.g. Winkel 2007), while simultaneously
misconstruing RJ as a means for victims to ‘help themselves’ and equating non-
participation in RJ with unwillingness to do so (Pemberton et al. 2007). But more
importantly in the current discussion, it forgets that an intangible benefit of a
 Respecting victims of crime 41

right lies exactly in the value of being able to opt out (see also Van Camp and
De Mesmaecker 2014, this volume). Declining to participate in a procedure is a
beast of a fundamentally different nature from not being offered to participate at
all. It might not amount to ‘helping themselves’ but in this sense (the offer of) RJ
can be of value to non-participants as well.

Wrongfulness and harmfulness, elaborating the

fact of victimization by crime

Wrongfulness as the key distinguishing element of

victimization by crime
The notion that respecting victims of crime involves offering recognition
respect for the fact of victimization of crime needs further elaboration. What
does the fact of victimization by crime entail? In my view the full answer to
this question involves understanding the complex way in which the wrongful-
ness and harmfulness of the experience of victimization by crime are entwined.
As Antony Duff (2003, p. 47) summarizes: ‘The wrong done to the victim of
rape, or wounding, or burglary, is in part constituted by, but also part constitutes
the harm that she suffers: to understand such harm, we must understand it as a
criminal harm – as a harm that consists in being wrongfully injured.’ Indeed it
is hard or even impossible to identify the harm independently from the wrong,
the crime, that caused it.
The key distinguishing element of victimization by crime is thus that it is
caused by a wrong,15 and indeed a public wrong, not in the sense that it is a
wrong against the public rather than the victim but that it transgresses the values
by which the political community defines itself as a law governed polity (Duff
2003, p. 48; see also Duff 2001b). It is therefore up to the public to provide an
appropriate reaction.16
Given this understanding, respecting the fact of victimization by crime requires
inclusion of (public) wrongfulness. Importantly, this is not only so because of its
inclusion in the definition of crime as such, but also because it is a key component
of the experience of crime victims. Being on the receiving end of wrongdoing is
a qualitatively different experience from wrongful-less harm, which has a par-
ticular bearing on the requirements of justice in the aftermath of victimization
(Darley and Pittman 2003; Robinson and Darley 2007; Darley 2009). The Oliver
Wendell-Holmes aphorism, that even a dog knows when it is being kicked rather
than stumbled over, summarizes this distinction well.17
A key issue is that the conception of repair for wrongful injury necessitates
the involvement of the offender: it is his/her apology, not someone else’s, that
matters (Strang 2002); and any censure or punishment that follows wrongdoing
should have him/her as the subject. Indeed any possibility of transferring censure
and punishment for wrongdoing to someone else negates the extent to which it in
effect can effectively function as censure/punishment for wrongdoing (see more
42 Antony Pemberton

extensively Pemberton 2012b). In addition, the nature of crime as public wrong-

doing signals the importance of sufficient acknowledgement of victimization by
(representatives of) the public (e.g. Orth 2003; Wenzel et al. 2008).

The yardstick of harm

As can be understood from Duff’s summary above, the relationship between harm-
fulness and wrongfulness is twofold. Harmfulness first comes in as a constitutive
element of what defines crime as such. In other words one of the necessary com-
ponents of criminalizing behaviour is because it harms or at least is sufficiently
likely to harm (Feinberg 1984). The extent of wrongfulness of a given act is cor-
related with the harm it produces, could have produced or is likely to produce.
However this correlation is not absolute: minor wrongdoing can lead to the
experience of great harm, for instance when a momentary lapse of concentration
leads to vehicular manslaughter, while attempted murder is a wrong of consid-
erable magnitude, irrespective of the harm it causes. The difference is due to
the fact that although harm is a necessary element of wrongdoing, it does not
have sole province in determining the extent of wrongdoing in general, nor in
individual cases.
In a second sense the wrongfulness of crime is an element of the victims’ expe-
rience of harm. What is important is to recognize the veracity of Duff’s conclusion
that a correct interpretation of victims’ experience involves understanding that it is
a criminal harm, a harm that consists in being wrongfully injured. The experience
therefore involves a qualitatively different form of harm, but of harm nonetheless.
Understanding the impact of victimization, its magnitude, is thus appropriately
measured along a yardstick of harm, to which the victims experience of wrongful-
ness has contributed.

Harmfulness and wrongfulness and the victim’s

contribution concerning sentencing
Where the victim’s experience is best measured on a yardstick of harm, the extent
of censure and indeed punishment due to the offender is a function of his/her
wrongdoing. This is something of a mirror image of the victim’s experience, for
the harm caused by the offender in part constitutes his/her act’s wrongfulness,
which in turn in part constitutes the harm he/she caused. Where the victim experi-
ences a magnitude of criminal harm, the offender is judged on the extent of his/
her harmful wrongdoing. Measurement of these phenomena shares a kernel of
common ground, but also includes distinct features. It is beyond the scope of this
chapter to extensively explore this distinction, but in general terms, where the
victim has to come to terms with the harm that actually emerged from the crime,
the issue in a criminal justice process includes whether or not the offender could
foresee or had intended these consequences to happen.
 Respecting victims of crime 43

In my view appreciating the importance of this distinction provides a key

insight into the nature of victim involvement in criminal justice, where it has
or can have direct bearing on the sentence of the offender, such as in victim
impact statements or victim statements of opinion (Roberts 2009). This under-
standing will also incorporate the insights gleaned from the previous sections:
the differences between recognition and appraisal respect on the one hand and
empathy and sympathy on the other.
Respecting the fact of victimization involves respecting the fact that someone
suffered criminal harm, a harm that consists in being wrongfully injured. What
bearing should this have, in principle, on the sentencing of the offender, for whom
the matter at stake is how wrongful his/her behaviour has been? The victim surely
has a unique and relevant perspective on his/her own experience of harm; there
is no one else who can offer the same insight into his/her experience of this harm
as he/she can. Knowing what the victim experiences and has experienced – a key
element of the notion of empathy and in particular of empathic accuracy – cannot
do without the victim’s input. If we would subsequently agree that this ‘duty to
understand’ is a constitutive element of the recognition respect we owe victims
due to the fact of their victimization, it seems apparent that respecting victims
includes allowing them the opportunity to express their experience of harm (see
also Pemberton and Reynaers 2011; Pemberton 2012a).
This experience of harm has bearing on the wrongfulness of the offender’s
behaviour: as noted, it is part of what constitutes wrongfulness. But does the same
apply to the victim’s opinion of the extent of this wrongfulness? In other words,
does respecting the fact of victimization and empathy for the victims position
imply that the victim should be allowed to offer his/her views on the sentence,
which subsequently should be taken into account as an independent source of
evidence to determine the sentence of the offender (Sarat 1997)?
I think it does not. Beyond the expression of harm and the evidence the victim
has had to offer during the trial, there is no good reason to place added value on
the victim’s views on the wrongfulness of the offender’s behaviour. The part of
the victim’s experience that can be relevant to this matter concerns the extent to
which the victim was harmed; the constituent elements of the extent of wrongful-
ness that are not covered by this fall outside the range of victims’ experience.
A direct translation of the harm the victim experienced into a measure of
wrongfulness results in blurring the boundaries between retribution and revenge
(e.g. Sarat 1997). In Nozick’s (1981) view a key element of this distinction is
that retribution is done for a wrong, while revenge may also occur for a harm or
a slight. It has been cogently argued on both philosophical (Zaibert 2006) and
empirical grounds (Gollwitzer 2009) that this distinction is overstated: from the
perspective of the avenger, revenge is also connected to a wrongful act. How-
ever, if Nozick’s distinction refers to the yardstick for this response, it becomes
apparent that although both retribution and revenge are ‘for wrongs’, the extent
of revenge is measured along the yardstick of harm, while retribution is measured
44 Antony Pemberton

along the yardstick of wrongfulness, including the extent of intent or culpability

of the offender.18
The question then is whether the victim’s own experience contributes to under-
standing the extent of intent or culpability of the offender, beyond what is covered
by the victim’s own yardstick of harm. This can only be answered in the affirma-
tive when the victim’s own experience is expected to simultaneously increase his/
her insight into the other non-harm factors that determine the extent of an offend-
er’s wrongfulness. But why would that be a reasonable expectation? Why would
we contend that victims are more able than others to estimate the offender’s intent,
culpability and the like? Indeed, there is good empirical reason to expect victims’
assessments of the extent of wrongfulness to be predictably biased (Baumeister
1997; Pinker 2011). The research demonstrating the moralization gap reveals that
victims have a tendency to exaggerate the offender’s intent, to underplay the role
of contextual factors and to focus on indicators of malice, while the offender tends
to the opposite.19
Of course some victims do demonstrate an increased understanding of moral
questions, including those relevant to the assessment of wrongfulness, in the after-
math of their victimization (see Van Dijk 2009; Vollhardt 2009). However, using
this as a base for victims’ rights not only errs as a matter of empirical fact – as
current evidence suggests this is more likely to be the exception than the rule – but
is also grounded in the wrong form of respect, i.e. appraisal respect rather than
recognition respect. As with the hero-victims we should take care to distinguish
our appraisal respect of certain victims’ increased insight from our recognition
respect for the fact of victimization, which forms the basis for our (moral) duties
towards victims and the grounding of victims’ rights.

Conclusion
This chapter has sought to clarify the idea that our duties to victims of crime and
the rights that are on offer to them can be grounded in a ‘meta-duty’ of respect.
I have argued that this respect should be seen as recognition respect for the fact
of victimization, which should be distinguished from appraisal respect for the
victims’ stance following victimization. The respect that grounds victims’ rights is
not the respect for the hero-victim, nor should it be made contingent on a victim’s
capability to display praiseworthy characteristics.
The fact of victimization crucially includes the understanding that the victim
has suffered criminal harm, a harm that consists in being wrongfully injured. The
harm part constitutes the wrong experienced by the victim, which in turn, part
constitutes the experience of harm. However, where the extent of victims’ injuries
are considered, the yardstick of harm, rather than wrongfulness, is appropriate.
Wrongfulness instead acts as a qualifier in victims’ experience. Victims have a
unique perspective on the harm they have experienced, to which the wrongfulness
of crime contributes. Beyond the extent to which the wrongfulness of crime con-
tributes to victims’ experience of harm, however, concerning the other non-harm
 Respecting victims of crime 45

factors that determine the extent of an offender’s wrongfulness, it is not apparent

what merits the expectation that the victim will have additional insights to offer.
This is dubious on empirical grounds, but in my understanding it is also based
upon the wrong kind of respect, i.e. appraisal rather than recognition respect.
A close corollary of the meta-duty to respect is a duty to understand. Respect
is in large part contingent on empathy, which includes the necessity to understand
what the object of respect values and holds good from his/her point of view as an
equal independent agent, while acknowledging the fact that these emotions and
reactions are often unclearly understood.
This chapter has stressed the distinction between empathy and sympathy. The two
terms are often used interchangeably and the latter is a key emotional component
of the care-response focused on relieving victims’ suffering: fully understanding a
victim’s experience and an urge to alleviate the anguish that the victim experiences
are intimately connected. Nevertheless, within victims’ rights, sympathy can lead us
astray. We should not lose sight of sympathy’s primary concern with alleviating the
distress felt by the observer on viewing the victim’s suffering, with its pre-arranged
choice to solely focus on actions to the benefit of victims in terms of their suffer-
ing, neglecting the fact that victims may have needs and wishes that are either not
directly rooted in their suffering, or are not related to coping with or relieving this
suffering. Indeed the paternalism involved in sympathy can jeopardize the extent to
which victims’ rights actually amount to rights, rather than preordained avenues to
achieve a measure of coping in the aftermath of victimization.
In summary, this chapter hopes to have contributed to a deeper insight into
the underlying rationales of victims’ rights in the criminal process, which
might also alleviate some of the misgivings that have been voiced about vic-
tims’ rights. Adopting the position taken in this chapter will restrict the extent
to which therapeutic rationales can serve as an argument for victims’ rights and
offers a victim-focused objection to the inclusion of victim statements of opin-
ion about the punishment of the offender.
Nevertheless, further elaboration and discussion of the key concepts in victims’
rights might result in unearthing irreducible conflict with other crucial criminal jus-
tice values. We should be alive to the possibility that successful integration of vic-
tims’ rights in the criminal justice system without placing undue pressure on other
values we hold dear, might not be feasible.20 But at least following this line of inquiry
will allow us to ascertain what elements of victims’ rights conflict by necessity and
on principle, rather than by the happenstance of their current implementation.

Notes
1 See for a comparable analysis in the eld of human rights, Donnelly (2009) and Rosen
(2012).
2 I confess that in the case of the last group some wishful thinking is involved here.
3 In an extended sense, recognition respect may also entail prudential rather than moral
restrictions on how to act. The fact that someone obeys a police ofcer may be due to
the moral respect one has for the fact that someone else is a police ofcer; however, it
46 Antony Pemberton

may also be merely due to the fact that one fears the possible consequences of neglect-
ing a police ofcer’s instructions. This illustrates that moral recognition respect, in the
way it implies a duty how to act, is not easily discernible from prudential recognition
respect.
4 In a similar but slightly different vein, not all appraisals are attributed to character, but
to circumstance and/or nature, although just-world bias (Lerner 1980) and the fun-
damental attribution error (Ross 1977) make it likely that appraisal respect will be
forthcoming in many circumstances that do not objectively merit it. People have a bias
to nding character, rather than chance or nature, to be the cause of outcomes (Knobe
2006).
5 There are many examples of this, but maybe a well-known footballing duo that will
make this most point clear are Barcelona’s Lionel Messi and Real Madrid’s Cristiano
Ronaldo. The former is not only one of the best soccer players of all time but is also
the object of high appraisal respect, due to a great extent to his sportsmanship and his
humility, while the latter, for all his talents, is not widely respected due to his arrogance
and his many schwalbes (dives). My sincerest apologies for offending any Real Madrid
supporters by this assessment.
6 This quote from Braithwaite (2003, p. 406) illustrates this phenomenon well (Robinson
and Darley 2007 use it to make a similar point): ‘However, the restorativist’s hope is
that the conversation about the urge for retribution will result in it being transcended
so that people can move on. The reason restorativists think this way is that they believe
peoples’ natural retributive urges are not healthy things to perseverate upon. Moreover, in
the conditions of contemporary societies, as opposed to the conditions of our biological
inheritance, retribution is now a danger to our survival and ourishing. It fuels cycles of
hurt begetting hurt. It is hoped that conversations that allow a space for the consideration
of healing will help people to see this more clearly.’
7 Zitek et al. (2010, p. 246) summarize this phenomenon as follows: ‘Wronged individu-
als feel that they have already done their fair share of suffering – as if there were a
maximum amount of victimhood that a person can reasonably be expected to endure –
and consequently, they feel entitled to spare themselves some of life’s inconveniences,
such as being attentive to the needs of others.’
8 This is by no means the only way of dening empathy; the literature is rife with deni-
tions of this phenomenon, and the same is true of the distinction between empathy and
sympathy (e.g. Batson 2011). The distinction Wispé (1986) employs is particularly
illuminating for the current discussion.
9 Acorn (2004, p. 10) quotes Rousseau as summarizing: ‘Why are kings without pity for
their subjects? Because they count upon never being mere men.’
10 As I will show, this statement may be qualied, in different ways, for both sympathy
and empathy.
11 I should note that there are other ways of dening and distinguishing sympathy and
empathy: for the current discussion Wispé’s denition seems to be the most helpful.
12 I should note that this not the same as the ethics of care; see for instance Held (2007).
13 Respectively ‘criminal justice correspondence’ and ‘therapeutic coherence’; see Pem-
berton and Reynaers (2011).
14 We should also note that the extent to which justice processes impact coping is mar-
ginal at best (e.g. Pemberton and Reynaers 2011).
15 I am aware that this position is not without its critics, see for instance Christie (1977);
Hulsman (1986). See Duff (2001b, pp. 60–64) and Robinson and Darley (2007) for
convincing rebuttals.
16 This does not mean that there cannot be other reasons for a public response. The expe-
rience of harm of a fellow member of the public can itself be sufcient, however that
would then not amount to a response to victimization by crime.
 Respecting victims of crime 47

17 The way Holmes phrased it himself in The Common Law (1881/2011, p. 6) is ‘even a
dog distinguishes between being kicked and being stumbled over’.
18 In Pemberton (2012b) I also note that retribution entails an exact quantication of the
response warranted, while revenge solely sets out an appropriate sphere of response. It
appears to me that this is related to the fact that retribution is measured along the yard-
stick of wrongfulness, while in revenge wrongfulness solely functions as a qualier,
not as a quantication of the amount of revenge.
19 This is not the same as saying that victims are particularly vengeful (Pemberton 2012a).
Instead it changes the victims’ perspective on factors that determine wrongfulness in
his or her particular case.
20 See more generally Gray (2000).

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Chapter 3

Recognition of victims’ rights

through EU action
Latest developments and challenges
Helga Ezendam and Frida Wheldon1

Introduction
In May 2011 the negotiations in the Council of the European Union on the pro-
posal from the European Commission for a Directive containing minimum stand-
ards for victims of crime started. Ten years after the enforcement of the Frame-
work Decision on the Standing of Victims in Criminal Proceedings, twenty-seven
member states gathered again to discuss rights for victims. Apparently the Frame-
work Decision did not meet the expectations in raising the standards for victims
in criminal justice.
Instead of focusing on better implementation of the existing rights, the mem-
ber states and the European Commission chose to work on a new legislative pro-
posal, the argument being that the wording in the Framework Decision was too
vague. In new legislation this could be altered. Also, under the Lisbon Treaty
the legal instruments changed. For new legislation with regard to justice topics
only a majority is needed in the Council instead of unanimity. The European
Parliament has a lot more influence since the regime of co-decision procedure is
now valid for topics in the justice area. The role of the European Commission in
enforcing the implementation of the legal instrument became larger. These are
all valid reasons for creating a Directive to replace the Framework Decision. Is
the lack of proper implementation and execution of victims’ rights a result from
the vague wording of the Framework Decision or is something else needed?
Will the Directive be able to meet expectations and really improve the situation
for victims all over Europe? The APAV report2 shows big differences between
member states in compliance rates; no member state seems to fully comply with
the Framework Decision.
On 1 January 2011 in the Netherlands a law came into force giving victims
rights in criminal proceedings, for the first time independent of their status as a
witness or injured party, thus implementing the rights from the Framework Deci-
sion in hard law, instead of in guidelines. This law was implemented in practice
by adapting processes and automation. But even today victims in the Netherlands
do not always receive the respectful treatment, the information and compensation
they are entitled to by law, despite the efforts of a many professionals working in
52 Helga Ezendam and Frida Wheldon

the criminal justice system. Effective remedies are lacking, so it is impossible for
victims to enforce their rights. Will the Directive be able to change this?
In this chapter we will take a closer look at the Directive establishing minimum
standards for victims:3 what rights do victims get and will member states be able
to meet expectations? First we will take a short look back at the Framework Deci-
sion. To avoid the traps from the Framework Decision it is necessary to take a
closer look at this instrument and its results.

Framework Decision 2001

On 15 March 2001 the Council of the European Union unanimously adopted the
Framework Decision on the standing of victims in criminal proceedings. This
Framework Decision is a binding instrument, to be implemented in the legal order
of the member states. It contains rules about the legal position of victims in crimi-
nal procedure and the right to support. The Framework Decision is one of the first
‘hard law’ instruments in the field of criminal justice in the EU. This is in itself
remarkable since legislation and policy in the field of criminal justice was hardly
ever about victims. Most articles had to be implemented by 22 March 2002. Mem-
ber states had to send information on the implementation to the European Com-
mission. The European Commission evaluated the implementation and came in
2009 to the conclusion that hardly any country had implemented the Framework
Decision fully, eight years after its adoption.
The report of the European Commission4 stated:

The implementation of this Framework Decision is not satisfactory. The

national legislation sent to the Commission contains numerous omissions.
Moreover, it largely reflects existing practice prior to adoption of the
Framework Decision. The aim of harmonising legislation in this field has
not been achieved owing to the wide disparity in national laws. Many pro-
visions have been implemented by way of non-binding guidelines, charters
and recommendations. The Commission cannot assess whether these are
adhered to in practice.

Some remarkable issues from the evaluation are pointed out here, since they are
relevant for the expectations towards the new Directive. Firstly, the manner in
which the Framework Decision should be implemented was left to the member
states. But in the evaluation reports from the European Commission formal leg-
islation was the main criterion. For example, guidelines from the public pros-
ecutor, in the Netherlands published and binding, were not regarded as enough
for a solid implementation. Putting rights in hard law is thus assumed to lead to
better execution.
The European Commission also mentioned in the report that no member state
had implemented the Framework Decision in one single piece of national legisla-
tion. But looking at the wide range of measures in the Framework Decision and
 Victims’ rights and EU Action 53

given that no member state started from scratch, this was to be expected. Parts of
victims’ rights are about the rights of victims in the criminal justice system, usu-
ally to be put down in a code of criminal procedure.
Further, the evaluation shows that there is no shared vision between member
states on the position of victims. The role of the victim in the criminal justice
system differs greatly among member states. The interpretation of the rights men-
tioned in the Framework Decision followed the existing legislation in member
states. The same articles lead to different outcomes for victims.
Lastly, the wording of the Framework Decision was on many points very vague,
and with good reason because it had to suit every criminal justice system in the mem-
ber states. But this is also believed to be the reason for the lack of implementation.
From these findings we can deduce the following expectations with regard to
any future instrument. First, implementation of European rules by hard/formal law
leads to better execution. This point of view reflects also in the reasoning regarding
the need for a new instrument: a Directive is believed to be more enforceable than a
Framework Decision and thus lead to better implementation in the member states.
Second, victims’ rights are best secured through one single piece of legislation.
This is shown in the EU regulations themselves where there is one single piece
of legislation for victims about the whole of criminal proceedings and support
outside the criminal justice system.5 By comparison, to lay down the right to infor-
mation of a suspect an entire Directive was needed.
The third expectation is that the implementation of EU legislation will lead to
the same outcome for victims in every member state, even without an agreement
or shared vision on the position of victims in criminal proceedings. Finally, the
less vague the wording the better the uniformity of implementation will be.

Negotiations on the Directive

During the negotiations on the Directive of the European Parliament and of the
Council establishing minimum standards on the rights, support and protection of
victims of crime, it became clear that many different and sometimes conflicting
expectations surrounded this instrument.
The European Commission seemed dedicated to writing a proposal for a Direc-
tive for victims that would really benefit them. They researched the needs of vic-
tims and built on those needs a solid proposal for measures that would indeed
improve the situation in many member states. An impact assessment gave an
indication of costs and the European Commission took those into account when
choosing the measures. They expected that common minimum rules should lead
to increased confidence in the criminal justice systems of all member states, which
in turn should lead to more efficient judicial cooperation in a climate of mutual
trust as well as to the promotion of a fundamental rights culture in the EU.
Twenty-seven member states6 are involved in this process and needed to agree
on a package of measures for all victims. Although since the Treaty of Lisbon
unanimity is not necessary to reach an agreement, efforts are made to meet
54 Helga Ezendam and Frida Wheldon

boundary conditions of every member state. Since the criminal justice systems
in the member states differ so much it is not easy to find a wording of rights that
is acceptable to all. A major difference is to be found between the common law
and the continental law systems. The more concrete the wording, the greater
chances are that some member states oppose the text because it will lead to
problems with their existing legislation.
The differences between the systems in the member states led for instance to
an important new recital (10c) in the Directive regarding the role of the victim
in the criminal justice system. Due to differences in the criminal justice systems,
the Directive does not prescribe whether the victim should be a party to criminal
proceedings. Certain elementary rights in the Directive will depend upon the role
of the victim as determined by each member state separately, such as the right
to receive information about the case and the right to interpretation. One thing
most member states seem to have in common regarding this Directive is that the
Directive should not lead to costly measures. The financial crisis is felt by every
member state, although not to the same degree.
The role of the European Parliament regarding the Directive is, as a conse-
quence of the Treaty of Lisbon, bigger than its role was in 2001 with regard to
the Framework Decision. In co-decision on this Directive with the twenty-seven
member states in the Council they have their own wishes and expectations with
regard to rights of victims. High expectations and a strong desire to improve the
position of victims were evidenced through the over 500 amendments they made
to the text proposed by the European Commission. Looking at the span of control
of the amendments, cost seems not to be an issue to the European Parliament. The
involvement of FEMM – a committee of the European Parliament7 – led to quite
a few proposals regarding victims of gender-based violence, singling them out.
This led to an intense debate about which categories of victims are most in need
of special attention and limiting the horizontal character of the instrument.
A very important group of stakeholders of the Directive are the people work-
ing in the criminal justice system and in victim support in the member states.
Although the negotiations in Brussels seem to be far away from their daily work,
when it comes to implementation they are the first to criticise a new instrument if
it complicates procedures: they expect the new Directive to be effective and easy
to carry out in practice in connection with existing procedures.
But the most interested parties are the victims themselves. Victims demand more
rights nowadays. The criminal justice system cannot limit itself to the rights of a
suspect any more or it will lose the faith of citizens and victims. The International
Crime Victim Survey (van Dijk et al. 2007) shows that victims in countries who
have relatively high standards for victim support are less satisfied with their police
than in countries where standards are lower. One explanation could be found in the
expectations of victims: the higher the standards, the higher the expectations might
be and the more disappointed victims are if their expectations are not met. So if
member states use the future Directive to promise better support and more rights
for victims, expectations of citizens will rise. When their expectations when they
 Victims’ rights and EU Action 55

become a victim are not met, confidence will disappear quickly. The trust of citizens
and victims in the criminal justice system is at stake.
The consequence is that we have to be clear about the rights victims have, the
services they can expect from the government, organisations in the criminal jus-
tices system and victim support organisations. Although the Framework Decision
has been a great step in improving rights of victims, it left more to be desired. In
order not to make the same mistakes, the text of the Directive should contain clear
obligations for member states as far as possible considering the differences between
countries. One way to realise this would be to focus more on the output and outcome
and leave procedures to member states. But most of all we have to live up to our
promises. To be able to practice what we preach it is necessary that the Directive is
clear, easy to carry out in practice, not costly and meets the needs of victims.
First of all it is victims’ expectations we have to keep in mind. Justified expecta-
tions should be met. Sometimes expectations of victims are too high and then we
have to give victims clear information on what they can expect. This means also that
during negotiations on the Directive we have to be clear to other stakeholders what is
realistic in practice and what is not. Looking at all the expectations surrounding the
new Directive we have a very demanding challenge at hand and the stakes are high.

Impact of the Directive on victims of crime

For victims, the Directive aims to strengthen their rights to access protection, sup-
port, information and a range of other rights in the aftermath of crime.

Objective (Article 1)
The Directive has a clearly stated objective, which highlights its horizontal nature.
It aims to ensure that all victims of crime:

• receive appropriate information, support and protection;

• are able to participate in criminal proceedings;
• are recognised and treated in a respectful, sensitive, tailored, professional and
non-discriminatory manner.

In practice, the objective clarifies that the rights and services contained in the
Directive must be available to all victims of crime and cannot be limited to, for
instance, only victims of domestic violence, terrorism victims or young victims of
crime. While these groups are important and should be able to access rights, serv-
ices and protection, so should all other victims of crime. It is also clear that this
objective should be met in all EU member states – these are minimum standards
that all countries must fulfil. To meet this objective, the Directive provides rights
for victims throughout the criminal justice process. Below follows a description
of victim’s journey through the criminal justice system in order to highlight where
the individual rights arise for victims.
56 Helga Ezendam and Frida Wheldon

A crime has been committed

Immediately following the crime, the Directive grants victims a range of rights,
such as the right to receive information; the right to understand and to be under-
stood; the right to interpretation/translation; and the right to access support serv-
ices. These rights are also available for victims of unreported crime, so there is no
need to report a crime in order to access these rights. For victims who choose to
report the crime, there are additional rights available, such as for instance the right
to review a decision not to prosecute.

The case goes to trial

The Directive provides a wide range of rights to victims taking part in the criminal
justice process; this is where the vast majority of rights focus. Rights for victims
taking part in the criminal justice process include the right to be heard; the right
to legal aid; the right to reimbursement of expenses; the right to compensation
from the offender; the right to protection (generic right to protection from retali-
ation, intimidation, repeat and further victimisation, including psychological and
emotional harm); the right to avoid contact between victim and offender; the right
to protection of privacy; the right to individual assessment to identify specific
protection needs; and the right to special measures for victims with specific pro-
tection needs.

Beyond the trial

Even beyond the trial, the Directive provides certain rights for the victim, namely
the right to receive information (for instance regarding the release of the offender);
the right to access support services; the right to safeguards in restorative justice
services; and the prevention of re-victimisation – professionals working with vic-
tims should be trained to deal with victims in a respectful manner. Their training
should include the ability to identify and prevent intimidation and re-victimisa-
tion. Unless provided by other public or private services, victim support serv-
ices should also provide advice relating to the risk and prevention of retaliation,
intimidation and repeat or further victimisation.

Cross-border cases
The Directive also clarifies and strengthens the rights for cross-border victims.
For instance, it highlights that a victim should be able to make a complaint to the
competent authority of the member state of residence if they are unable to do so
in the member state where the crime took place or in case of a serious offence, if
they do not wish to do so. A victim should also be allowed to report a crime in a
language that the victim understands.
 Victims’ rights and EU Action 57

Regarding provision of assistance in cross-border cases, the Directive

states that:

if the victim has left the territory of the member state where the criminal
offence was committed, that member State should no longer be obliged to
provide assistance, support and protection except for what is directly related
to any criminal proceedings it is conducting regarding the criminal offence
concerned, such as special protection measures during court proceedings.
The Member State of the victim’s residence should provide assistance, sup-
port and protection required for the victim’s need to recover.

As described, the Directive provides rights for victims at every stage of the pro-
cess; immediately following the crime, during any criminal justice proceedings
and beyond. It includes rights for victims of unreported crime, although this is an
area where further focus should be put to ensure the rights of victims of unreported
crime are fully met and as strong as they could be. Finally, the Directive strengthens
and clarifies the rights for victims of cross-border crime.

Victim support services

The EU Commission has estimated that, every year, around 75 million people
fall direct victims to crime in the EU. If we include family members, partners and
other relevant groups, the real number of people adversely impacted by crime in
the EU is more likely around 200–300 million people. Not all of these people will
need support in the aftermath of crime, but many will and today many victims in
Europe are not able to access support services. The European Crime and Safety
Survey (EU ICS) 2005 calculated that, on average, only around 16 per cent of
victims in Europe are able to access support services. Some 42 per cent of victims
who did not receive support would have liked to access support (van Dijk et al.
2005, p.77). There is clearly a big gap between supply and demand of victim sup-
port services in the EU today.

Right to support requires victim support services

Right to support
Victims have had rights in relation to support for many years. The 1985 United
Nation Declaration on Basic Principles of Justice for Victims of Crime and Abuse
of Power states that ‘victims should receive the necessary material, medical, psy-
chological and social assistance through governmental, voluntary, community-
based and indigenous means’. Clearly the right to support is not new; as early as
1985 victims across the world, not just Europe, were given a right to support. The
language is, however, quite vague and there is no clarification on who is respon-
sible for establishing or providing support services.
58 Helga Ezendam and Frida Wheldon

In Europe, the 2001 Framework Decision on the Standing of Victims in Criminal

Proceedings established for the first time legally binding rights for victims of crime.
This strengthened victims’ rights to support and along with it, the status of victim
support services, with article 13 requiring member states to ‘promote the involve-
ment of victim support’ and ‘encourage action taken’ by victim support organisa-
tions. However, these are very vague wordings and member states can claim to be
‘encouraging’ and to ‘promote the involvement’ of victim support without actually
setting up independent victim support services.
The Council of Europe Recommendation (2006) 8 on assistance to crime vic-
tims calls on states to ‘provide or promote dedicated services for the support of
victims and encourage the work of non governmental organisations in assist-
ing victims’. Similar to many international treaties, the wording is vague and
ambiguous without any real accountability or enforcement provisions. How-
ever, the Recommendation goes slightly further than the Framework Decision
and lists a range of minimum standards for victim support services, stating that
they should: be easily accessible; provide victims with free emotional, social
and material support before, during and after the investigation and legal pro-
ceedings; be fully competent to deal with the problems faced by the victims they
serve; provide victims with information on their rights and on the services avail-
able; refer victims to other services when necessary; and respect confidentiality
when providing services.
The Recommendation also includes calls on states to ‘coordinate services for
victims’ and set up ‘free help lines’. As a Recommendation, these calls are not
legally binding and many member states did still not develop separate support
services following its adoption.

The EU Directive
Where these previous treaties have failed to achieve their desired outcomes, we
hope that the new EU Directive establishing minimum standards on the rights,
support and protection of victims of crime will be more successful. The Direc-
tive aims to ensure that the same level of minimum rules will apply to victims of
crime regardless of where they live or where in the EU the crime takes place. The
strengthening of rights also relates to support services. The Directive includes a
strong right to support:

Member States shall ensure that victims, in accordance with their needs, have
access to confidential victim support services, free of charge, acting in the
interest of the victims before, during and for an appropriate time after crimi-
nal proceedings.

Family members shall have access to victim support services in accordance

with their needs and the degree of harm suffered as a result of the criminal
offence committed against the victim.
 Victims’ rights and EU Action 59

Member States shall take measures to establish free of charge and confidential
specialist support services in addition to, or as an integrated part of, general
victim support services, or to enable victim support organisations to call on
existing specialised entities providing such specialist support.

The right to support contained in the EU Directive has clearer wording and pro-
vides a more extensive call on member states to set up victim support services
(generic and specific) and give access to support services to both victims and
family members. The recital (37) clarifies that support should be available from
the moment the competent authorities are aware of the victim, throughout any
criminal proceedings as well as after any proceeding in accordance with the needs
of the victim: ‘Support should be provided through a variety of means, without
excessive formalities and through a sufficient geographical distribution across the
member states to allow all victims the opportunity to access such services.’ Given
the strong wording of the right to support in the Directive and the clear account-
ability for member states to ensure access to support, we hope that the imple-
mentation of the Directive will lead to the set-up of independent victim support
services in every EU member state.

Impact of the Directive on victim support providers

In addition to requiring member states to ensure the provision of victim support
services, there are many other rights in the new EU Directive that are likely to
impact on victim support service providers. Below follows a summary of these
rights and their likely impact.

1 Access to support for all victims/referrals: The Directive highlights that

member states shall facilitate the referral of victims, by the authority
receiving the complaint (police) or by other relevant entities, to a victim
support service. If this right to be referred is implemented properly, it has
the potential to quickly increase the number of victims who can access
support services.
2 Minimum services provided: The Directive lists the minimum range of serv-
ices that victim support should provide to victims. This may expand the range
of services that some victim support services currently offer. The Directive
highlights that victim support services should deliver, as a minimum:
• information, advice and support in relation to compensation, victims’
rights, their role in the criminal justice proceedings and preparation for
attending trial;
• emotional and, where available, psychological support;
• advice relating to financial and practical issues arising from the crime;
• advice relating to the risk and prevention of secondary and repeat vic-
timisation, intimidation and retaliation.
60 Helga Ezendam and Frida Wheldon

The Directive highlights that specialised services should, as a minimum,

provide shelters and any other appropriate interim accommodation, as well
as targeted and integrated support for victims with specific needs, such a
victims of sexual violence, victims of gender-based violence and victims of
violence in close relationships, including trauma support and counselling.
3 Information: The Directive strengthens victims’ right to receive information,
compared to previous legislation. It clarifies that from the first contact with
the competent authority, victims have the right to receive a range of infor-
mation, such as where and how to report a crime; where and how to access
support; how and under what conditions they can access protection, legal aid,
compensation, translation, interpretation etc.; any cross-border arrangements
required for the case; contact details for communications about their case;
and available restorative justice services.
Once the judicial process has started, victims have a right to also receive any
decision ending the criminal proceedings, including reasons for that decision;
ongoing information regarding the state of the case throughout the criminal
justice proceedings; the time and place of the trial; the final judgement in a
trial, including any sentence, and including reasons for that decision; and the
release of the offender from detention.
Victim support services in many European countries are likely to be key play-
ers in providing this extended amount of information, both in the initial stages
and throughout the criminal justice process. As such, the extended informa-
tion right is likely to have an impact on the information delivered by victim
support services and the timings of the interaction between victims and sup-
port services.
4 Individual assessments: The Directive requires member states to conduct
an individual assessment of victims’ needs to identify specific protection
needs and requirements for protection measures. Victim support services
have extensive experience in identifying and meeting the needs of victims of
crime, so this is an area where victim support professionals are able to play an
important role in conducting the assessments and/or providing recommenda-
tions regarding the development of special protective measures.
5 Training of professionals: As is already the case in many member states, victim
support services are often very well placed to take part in developing and deliv-
ering training to criminal justice professionals working with victims of crime.
6 Identity best practice and assist implementation: Victim support services are
often well placed to provide information on best practice and can give recom-
mendations on (and options for) how the individual rights in the Directive can
be implemented in practice.
7 Monitor implementation, member states’ fulfilment of implementation and
victims’ ability to access their rights: In addition to providing support serv-
ices and assistance in implementation, victim support services are often ide-
ally placed to also monitor the implementation of the Directive and victims’
ability to access their right in practice.
 Victims’ rights and EU Action 61

As highlighted in this chapter, if implemented properly, the EU Directive is likely

to have an impact on victim support service providers with respect to both the
number of victims they will work with and the operational activities and support
services they deliver.

Future challenges and gaps

The Directive is an important step forward in the protection and promotion of
victims’ rights in the EU. It contains many of the rights that are of vital impor-
tance to victims in the aftermath of crime. As highlighted, it has much potential
in strengthening victims’ access to rights in the aftermath of crime and will also
hopefully strengthen the role of victim support services. Having said all that, are
there any vital rights that the Directive does not include? Are there any particular
challenges in the ability of the Directive to deliver the rights for victims in prac-
tice? There are four main points we would like to highlight in this area.

1 The right to an impartial, independent and timely investigation: Looking

at the content of the Directive, there are in particular two areas that have
been overlooked in the list of rights. The first one relates to the initial police
investigation.8 Given the delicate nature of forensic evidence, it is important
to secure evidence as soon as possible after an event. If an investigation is
delayed it is sometimes very difficult to secure sufficient evidence which
will impact on the ability for victims to access justice. Common concerns
raised by victims and victims’ families (in particular families bereaved by
murder) are that the police investigation has been insufficient, prejudiced by
the police having an interest in the case or that the investigation was delayed
or did not take place at all. Insufficient or prejudiced investigations is a great
concern to many victims and without the proper investigation, victims will
not be able to access justice through the criminal justice process. The right to
an impartial, independent and timely investigation is a vital right, but has not
been included in the Directive.
2 Right to a fair trial within a reasonable time: There are many time restric-
tions regarding how long an accused person should have to wait before
having the allegation again him/her tried in court, in particular when the
accused is on remand. No such restrictions are generally in place regarding
victims. Many victims have to wait months if not years until their case is
dealt with in court, which in some ways prevents the victim from com-
pletely putting the event behind them and starting to rebuild their lives.
Victims suffer many of the same effects from the delay as accused persons
do; insecurity, anxiety, stress, apprehension etc. In addition, this is a period
where the risk of threat and intimidation are higher for victims and wit-
nesses. The inclusion of a right for victims to a fair trial within a reasonable
time would have given an incentive to member states to start looking at
how justice can be delivered as soon as possible for victims. As the saying
62 Helga Ezendam and Frida Wheldon

goes ‘justice delayed is justice denied’; an available legal redress that is not
forthcoming in a timely fashion is effectively the same as having no redress
at all. Alas, this right is also absent from the Directive.
3 Ambiguous wording: It is to be expected that a treaty covering all EU mem-
ber states with their different judicial systems and available resources will
include vague wording and compromise agreements. In the Directive there
are, however, some wordings in particular that are threatening the impact of
those rights in practice. Below follow two examples:
i Special protection measures: The Directive calls on member states to
ensure that victims with specific protection needs are able to access pro-
tection measures. However, the article clarifies that ‘[a] special meas-
ure envisaged following the individual assessment shall not be made
available if operational or practical constraints make this impossible’.
For member states that do not currently provide special measures, there
will undoubtedly be many operational and/or practical constraints to
implement this right in practice, for instance by establishing appropriate
premises, training of professionals, installing CCTV facilities, etc. How-
ever, the wording of this caveat offers an opportunity for member states
to refrain from delivering the measures in practice by claiming it would
be too expensive. No details are given in relation to what steps member
states must take to demonstrate their attempts to implement the measures
in practice.
ii Training: The final wording of the article relating to training of profes-
sionals is not as strong as Victim Support Europe would have hoped.
Although the Directive clarifies that member states shall ensure that
police offers and court staff are trained, training should only be made
available for judges, prosecutors and lawyers. There is no requirement
that they must attend. Regardless of whether or not a range of courses
are made available, the training will only have an impact in practice if
professionals working with victims actually attend it and take the new
learning into account in their contacts with victims of crime.
4 Implementation: The Directive is adopted; the main challenge to the success
of the Directive now hinges on national implementation. The 2001 EU Frame-
work Decision on the Standing of Victims in Criminal Proceedings did not
fulfil its full potential due to lack of implementation: no member state fully
implemented all articles and gave victims access to the contained rights. The
failure in the implementation of the Framework Decision demonstrated that if
member states are not interested or willing to allocate the required resources,
the rights will not be fulfilled in practice. In these situations, it is the role and
responsibility of the Commission to consider taking actions against the states
that are not fulfilling the demands accordingly. This could hopefully be one
way of providing an incentive to member states to allocate sufficient time and
resources to the implementation.
 Victims’ rights and EU Action 63

Implementation in the Netherlands

It took the Netherlands ten years to implement the Framework Decision in formal/
hard law. On the first of January 2011 the Netherlands enforced a law giving rights
to victims in the criminal justice system, for the first time independent from their
role as witness or injured party. Victims are mentioned for the first time in the
criminal procedure code.
One of the reasons it took so long is related to culture, namely the importance
perceived in practice of victims’ rights in the criminal justice system. Implemen-
tation of victims’ rights through binding guidelines seemed enough to ensure a
good practice. In 2004 a broad and thorough examination of the Dutch criminal
procedure code was completed. One of the many resulting recommendations
was the incorporation of victims’ rights in the law. But this was not considered
the first priority in the overall plan of bringing the criminal procedure code up
to date. In this particular case it took an exceptionally long time to pass the
bill on victims’ rights through parliament, due to an amendment regarding the
position of parents of youth suspects. In between the passing of the bill and the
law coming into force, the Dutch Ministry of Security and Justice, along with
the organisations working in the criminal justice system, had one year to get it
properly implemented. This time appeared too short (even though the imple-
mentation preparations started during the discussion in parliament) to change
processes and automation fundamentally for a number of organisations working
in the criminal justice system. Organisations involved in the implementation
were the police, public prosecutor, Victim Support Netherlands, courts, Custo-
dial Institutions, the Violent Offences Compensation Fund and the Central Fine
Collection Agency.
It is true that in the recent decennium many victims in the Netherlands were
treated with respect, received information and were able to collect compensa-
tion through the criminal justice system, just as the Framework Decision and
our own guidelines prescribed, but also many were not treated with respect, did
not receive the right information in time or were not able to gain compensation.
Victims’ rights were not and are not executed as properly as rights of defend-
ants. Although processes and automation were adjusted to execute victims’
rights, they still are built around the centre and main focus of the criminal jus-
tice system, namely defendants’ rights. Processes and automation are not built to
do justice to victims, they are built to do justice to defendants. No fundamental
changes have been made to really meet the needs of victims. For instance, in the
Netherlands police and public prosecutor have a huge database with information
on suspects/offenders, each with a unique identification number, accessible to
every organisation in the criminal justices system. For information about vic-
tims no such database is available and relevant information (such as a telephone
number or special needs requirements) are not passed on from the police to the
public prosecutor. If the obligations in the new Directive are to be met, a solid
64 Helga Ezendam and Frida Wheldon

registration of data of victims is essential and a basic condition to meet the

needs of victims.
The impact of the Framework Decision and the EU Directive on the criminal
justice system and victim policy is huge, or at least it should be. Just treatment of
victims influences the whole criminal justice system, from reporting a crime or
even prevention at the start, to the end where the offender is released uncondition-
ally. It also leads to obligations outside the criminal justice system. In the past the
general idea seemed to be ‘we add some measures to the current suspect-oriented
system. No real changes are necessary’. But the implementation of rights for vic-
tims is highly underestimated. For a proper execution of victims’ rights we have to
start rebuilding the processes and automation from scratch, laying a new founda-
tion to build a solid criminal procedure for both victim and offender.
The outcome of a discussion in the Netherlands between all organisations hav-
ing part in the criminal justice system where victims are concerned is that the
Ministry of Security and Justice together with these organisations should work
towards a redesign of the criminal justice procedure. The processes in the crimi-
nal justice system, including automation, have to be redesigned from a victim’s
perspective and unrestricted by current organisational constraints.
The Ministry and the organisations in the criminal justice system will redesign
the process of information to victims, so that timely information will always be
given, from the moment of reporting a crime until the release of an offender.
Options for a digital file that victims can consult through the internet will be
studied. Also the procedure to claim compensation will be adjusted and organised
from a victim’s point of view. In the stage of the execution, the needs of victims
should be taken into account also, for instance with regard to the decision where
the offender will be imprisoned or when an offender is due for leave.

Conclusions
The EU Directive on minimum standards for victims has become a document with
extensive rights for victims with regard to the criminal justice procedure and vic-
tim support. The debate surrounding the Directive and the process of implemen-
tation has brought increased expectations from victims of crime. Meeting their
expectations requires more than a Directive containing holistic, clearly worded
rights that can be implemented without undue financial burdens on the member
states. To (re)build the trust of victims in the criminal justice systems in Europe
we must also be able to deliver these new, stronger rights in practice. The adop-
tion of the Directive is only the first step; to ensure victims are able to access
their rights in practice, adoption must be followed by effective and coordinated
implementation and if required, enforcement. Otherwise we fall into the same trap
as with the Framework Decision: much is promised but not accomplished. We
simply cannot afford that.
 Victims’ rights and EU Action 65

Notes
1 This contribution is a combination of two presentations on the Directive containing
minimum standards for victims, representing the perspectives of a service provider and
a member state. This contribution does not necessarily reect the ofcial point of view
of the Dutch government.
2 Project Victims in Europe, 2009.
3 Directive 2012/29/EU of the European Parliament and of the Council of 25 October
2012 establishing minimum standards on the rights, support and protection of victims
of crime, and replacing Council Framework Decision 2001/220/JHA.
4 SEC (2009) 476.
5 More recently a few Directives were adopted (e.g. on human trafcking) where vic-
tims’ rights are part of the whole approach of the topic. But up till then the rights of
suspects and victims were described in separate instruments.
6 To be more precise; Denmark, the United Kingdom and Ireland have a special status
during the negotiations. Denmark is not a party to this Directive. The United Kingdom
and Ireland have opted in.
7 Women’s Rights and Gender Equality (FEMM). Available at: www.europarl.europa.eu/
committees/en/femm/home.html [Accessed 9 July 2013].
8 Victim Support Europe and their national member organisations come into regular con-
tact with victims who have not been able to access an impartial, independent investiga-
tion immediately following a crime.

Bibliography
van Dijk, J., Manchin, R., van Kesteren, J., Nevala, S. and Hideg, G., 2005. The Burden
of Crime in the EU – Research Analysis: A Comparative Analysis of the European
Crime and Safety Survey (EU ICS). Available at: www.europeansafetyobservatory.eu/
downloads/EUICS%20-%20The%20Burden%20of%20Crime%20in%20the%20EU.
pdf [Accessed 22 April 2013].
van Dijk, J., van Kesteren, J. and Smit, P., 2007. Criminal Victimisation in International
Perspective, Key Findings from the 2004–2005 ICVS and EU ICS. Den Haag:
WODC.
Chapter 4

Implementing victim rights in newly

industrialized countries
Reflections on major challenges and recommen-
dations for the future
K. Jaishankar

Introduction
In ancient times, when people led a nomadic life, the rights of persons were more
individual in nature. However, when they settled near rivers with new civiliza-
tions and formed various groups, the rights of persons became more communal
in nature. The group leaders formed certain rules with the consent of the groups
and rights were provided to individuals in a collective manner. When there were
rival attacks of groups or individual attacks within groups, the leaders of the group
ensured the rights of victims with specific unwritten rules and predominantly jus-
tice for the victims was revenge-based (Jaishankar et al. 2008). Though retributive
justice was the norm in various ancient laws1 there was an element of restorative
justice which ensured the rights of the victims of crime:

These ancient codes require offenders’ repayment in kind or extent to those

suffering criminal victimization in addition to or instead of prescribed retrib-
utive sanctions. The goals of these early legal systems were: seeing the victim
as a whole and to minimize private revenge.
(Tobolowsky 1999, p. 23)

Restitution was found to be common in these laws. The Kings of the ancient times
ensured justice to the victims of crime and provided adequate compensation to
the victims as well. The ancient time period, considered to be a golden age of
victims and the victim centred approach, continued ‘until approximately eleventh
century’(Tobolowsky 1999, p. 23).
During the Anglo-Saxon period, the European society started viewing crimes
as private matters, and individuals and groups started settling issues based on
revenge (Doak 2008). In European societies, ‘the Criminal law was enforced
through the payment of compensation to victims and their kin (‘bot’ and ‘wer’)
and fines were paid to the King (‘wite’)’ (Office of Crime Statistics 1988, p. 6;
Doak 2008). Later in the Middle Ages, when the modern states were formed, the
rights of victims became more a subject of the state. The state started viewing
crime as a ‘social harm’ and started protecting the rights of the victims by codified
 Rights in Newly Industrialized Countries 67

and traditional laws (Meloy 2010). When the state’s perception towards crime
changed to ‘social harm’ and when the state started posing as victims, it converted
the real victim to a mere witness with no role in the justice process. This period
‘marked the beginning of an era when the state gradually usurped the role of the
victim’ (Doak 2008, p. 2). The victim’s problem became secondary and restoring
social order became the priority of the state (Meloy 2010). ‘The state assumed
complete responsibility for arresting, prosecuting, and punishing the criminal
offender. Crime victims no longer had a part in the decision process; they were
just pieces of evidence’ (Jerin 2009, p. 109). There are two notions related to the
Middle Ages. Schafer (1968) calls this era a ‘golden age for the victims’ as the
system still had restitution provisions and Jerin (2009) calls it a ‘dark age for the
victims’ as the system weaned away the rights of crime victims by replacing them
with new justice processes which gave lesser solace to the crime victims. Similar
to the Middle Ages in Europe, during the medieval period countries such as India
had a system of restitution and the Mughal Kings protected the rights of the vic-
tims based on ‘Islamic Justice’.
Until the early twentieth century, many countries did not develop adequate
laws or rules to protect the rights of the victims of crime. During this period, ‘it
was the impact of capitalism and social forces driven by a free market economy
that contributed to the demise of the victim justice system’ (Doerner and Lab
2005, pp. 1–3; Tolbert 2009, p. 111). In the 1940s, it was Hans Von Hentig’s
efforts to bring the victim to the forefront that made various states think about
the ‘forgotten entity’ of the criminal justice system (Tolbert 2009). In the early
1960s, many countries woke up and started to create victim compensation leg-
islations. In 1963 New Zealand became the first country to develop a victim
compensation law, followed by Great Britain in 1964 and the USA (California)
in 1965 (Office of Crime Statistics 1988; Walklate 2007). Even though victim
compensation laws were created in the early 1960s, it was the British Magis-
trate Margery Fry’s vision on victim compensation, which she envisaged in the
1950s, that assisted in the creation of the compensation laws in various coun-
tries (Samuels 1967; Walklate 2007; Maratea 2009). In the 1970s, USA became
more conscious of victim rights because of the rise of various victim rights’
movements to protect the rights of women, children and minorities (Crowley
2009). Furthermore, ‘the efforts to re-establish a greater role for crime victims
in the criminal justice process received a major boost when President Ronald
Reagan established the President’s Task Force on Victims of Crime in 1982’
(Tobolowsky 1999, p. 22). Subsequently, the USA became a leading country in
ensuring the rights of victims of crime, along with other developed countries
such as Great Britain, Australia and New Zealand.
The Magna Carta for Victims2 of Crime, the 1985 ‘UN Declaration of the Basic
Principle of Justice for the Victims of Crime and Abuse of Power’, gave the member
states a new direction. ‘This document, although not a legally binding treaty, sets
out the minimum standard for the treatment of crime victims’ (Sarkar 2010, p. 16).
Because of the UN Declaration both the developed and the developing nations got a
68 K. Jaishankar

focus on the rights to victims of crime. The UN Declaration also created awareness
and mandate among various developing nations which had ignored the rights of
crime victims for a long time. Even though this very declaration describes the crime
victims’ rights holistically, victims’ rights can be divided into three segments: indus-
trial victims’ rights, crime victims’ rights and civil rights of individuals. The term
‘industrial victim’ includes victims of industrial accidents and victims of industrial
financial setbacks and related harassment by the employers. Crime victims’ rights
include rights against crime and abuse of power by the government authorities as
well as private entities. Civil rights ensure individual’s rights to the basic necessi-
ties which every government has to provide to its citizens. The primary aim of the
constitution of every democratic country is to safeguard these rights.
In light of the above, in this chapter I will address the rights of the victims
of crime that have been enshrined in the UN Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power 1985. This declaration
divided the concept of victims into two: victims of crime and victims of abuse
of power.3 While for the second group of victims, the Declaration lays down
a three part guideline towards the duties of the State,4 for the first group of
victims, the Declaration has four sets of rights, grouped under four heads: (i)
access to justice and fair treatment; (ii) restitution; (iii) compensation; and (iv)
assistance including material benefits, legal, psychological and medical help. I
will carry forward the discussions on the crime victims’ rights in nine selected
countries, which are grouped under the term newly industrialized countries
(NICs): Brazil, China, India, Malaysia, Mexico, Philippines, South Africa,
Thailand and Turkey, under the rights provided in the UN Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power and based on the
Constitutions of those countries and other legal provisions. I will also examine
the challenges in the implementation of the victims’ rights and provide recom-
mendations for their effective implementation.

Victim rights in the newly industrialized countries

NICs, countries based on a new classification, are poised between the developed
and developing nations. Though there are many NICs in various classifications,
I have chosen nine: Brazil, China, India, Malaysia, Mexico, Philippines, South
Africa, Thailand and Turkey. An important feature of the NICs is increased
social freedoms and civil rights, which is a sure sign that victim rights are not
being ignored. NICs show a potential not only for economic growth but also
for revamping the existing criminal justice system which favours offenders
instead of victims. There is a remarkable change in the mindset of the officials
of the criminal justice system of NICs: most of the countries have started view-
ing victims as the fulcrum of the criminal justice process. In the following
section, I will provide a detailed analysis of the rights of victims of crime in
each NIC.
 Rights in Newly Industrialized Countries 69

Brazil
Brazil is one of the Latin American countries where the rates of criminal victimization
are high. Homicide victimization is particularly high in Brazil, with annual homicide
rates above 20 per 100,000 inhabitants – the fourth-highest in Latin America and the
Caribbean (Morrison and van Bronkhorst 2006). In addition, ‘according to data from
victimisation surveys, Brazil in the mid-1990s had the highest rate of victimization
for robbery and sexual assault; intimate partner violence affects one in three Brazil-
ian women’ (Morrison and van Bronkhorst 2006, p. i). Apart from general crimes,
ethnic issues, prison violence, human rights violations and youth violence are very
common. Since Brazil was earlier under the Military rule (1964–85) victims of abuse
of power are abundant, torture victims especially are ubiquitous. Although there are
no adequate statutory laws for the victims, in cases of ‘disappearances’ during the
Military rule, compensation has been paid ‘to the next of kin of “disappeared” per-
sons and victims of torture’ (David 2006, p. 100) based on a new law (Hamber 2009).
Ironically, the compensation provided was highly criticized by victim support groups
as a being a way of buying off the victims rather than punishing those involved in the
abuse of power. The victim support groups wanted only ‘truth’ and not compensa-
tion, and unfortunately this aspect has made the groups unpopular (Hamber 2009).
Apart from the law for the compensation for the ‘disappeared’, the constitu-
tion of Brazil provides the rights of the victims of crimes (Human Rights Watch
2012a). Chapter I of the Brazilian constitution, which addresses collective rights
and duties under article 5, clearly lays down certain basic legal rights for victims
of crimes. The constitution guarantees equality before the law and equal rights
regarding life, liberty, privacy, free speech, free movement, right to property, etc.
It includes a guarantee to access to justice and fair treatment (clause XXXIV):

all persons are ensured, without the payment of fees: (a) the right to petition
the public authorities in defending the rights or against illegal acts or abuse
of power; (b) the obtaining of certificates from government departments, in
order to defend the rights and clarify situations of personal interest.

Apart from these rights, the judiciary has the right to review any violation of or
threat to a right and the state cannot make any law against this right. The constitu-
tion also guarantees the rights against impairing a vested right and the principle of
res judicata; the constitution further states that the penal law shall not be retroac-
tive, except for the benefit of the defendant.
The constitution guarantees rights against crimes and punishments given in
view of ex-post facto law and it recognizes the due process of laws in regard to
deprivation of assets or basic freedoms. It also recognizes the institution of juries
with the organization attributed to it by the law; it also guarantees, among other
things, the right to self defence, the sovereignty of the verdicts and jurisdiction to
adjudicate intentional crimes against life.
70 K. Jaishankar

The constitution highlights the victim’s rights by declaring certain offences as

non-bailable. It clarifies two sets of crimes as non-bailable: the practice of tor-
ture, unlawful traffic of narcotics and similar drugs, terrorism and crimes defined
as heinous crimes; and the acts of civilian or military armed groups against the
constitutional and democratic order. The constitution states that the law would
neither consider the first set of offences to mercy or amnesty, nor shall the prin-
cipals, the accessories and those who, although able to avoid them, abstain from
doing so, be held liable. Further, the constitution also guarantees that the right to
habeas corpus5 is granted if someone suffers or believes he or she is threatened by
violence or coercion in his or her freedom of movement, by illegal act, or abuse
of power. A writ of mandamus is guaranteed to protect a clear legal right which
is not protected by habeas corpus or habeas data, when the party responsible for
the illegal act or abuse of power is a public authority or an agent of a legal entity
performing government duties.
The constitution also speaks about the victim’s right to compensation which
may be effected from the liability for damages and a decree of loss of assets of the
offender. It also recognizes the need to pass on the liability of the offender to his/
her successor under the terms of the law up to the limit of the value of the assets
transferred. With regard to victim assistance, the constitution lays down in clause
LV that ‘litigants in court or administrative proceedings and defendants in general
are assured of the use of the adversary system and of full defence, with the means
and remedies inherent thereto’; however, the constitution favours offenders more
than victims. As such, the constitution prohibits the creation of an extraordinary
court or tribunal. It also guarantees rights against crimes and punishments given
in view of ex post facto law and it recognizes the due process of laws in regard to
deprivation of assets or basic freedoms.
The constitution highlights the offenders’ rights and lays down certain pre-
scribed forms of punishments which may include deprivation or restriction of
freedom; loss of assets; fines; the alternative social obligation;6 suspension or pro-
hibition of rights. At the same time, it prohibits certain forms of traditional punish-
ments such as the death penalty;7 life imprisonment; hard labour; banishment; and
anything which is cruel. The offender’s rights also include the right to be informed
about the grounds of arrest, to defence and to consult a legal practitioner. Female
convicts have the right to have their children with them, especially when they are
nursing and breastfeeding them.
For victims of abuse of power, the constitution provides relatively stronger
rights for military through clause LXI which states that ‘no one may be arrested
except in flagrante delicto or by written and substantiated order of a proper judi-
cial authority, except in the case of a military offense or a strictly military crime,
as defined by law’. However, the constitution also safeguards the individual’s
rights against abuse of political power and oppression by the government through
the guarantee of writs of mandamus and habeas corpus in general; and highlight-
ing the duties of the State through the three sectors, namely the legislative, the
executive and the judiciary.8
 Rights in Newly Industrialized Countries 71

China
China, one of the few communist nations in the world, is both conventional and
modern in its outlook. China’s traditional outlook echoes on its legal system and
restitution is favoured over the state compensation mechanisms for the victims of
crime (Jin 2006). The Chinese legal system is more an inquisitorial system which
includes some elements of the adversarial system in 1996, by an amendment. This
change in the legal system brought victims of crimes to the forefront as ‘parties’
and it provided certain procedural rights to the victims of crime (Zheng 2008). In
particular, victims became active participants in the criminal justice process (Jin
2006).
The Criminal Procedure Code (1996) and Criminal Law (1997) of China pro-
vide the following rights to the victims of crime (Jin 2006, p. 145):

A victim has the right to entrust agents ad litem;9 a victim may initiate a pri-
vate prosecution;10 civil compensation to the victim prior to a fine or confis-
cation of property;11 the legitimate property of the victims shall be promptly
returned to them.12

Restorative processes (including mediation) are newly introduced in China and

have proved to be successful. There are specific provisions related to restitution
from the offenders13 and restitution is very speedy in China. Currently, the pros-
ecutors’ office is only giving compensation, which is actually the restitution by
the offender (Qihui and Yinan 2012). Also, restitution is considered a form of
punishment (Jin 2006, p. 147). However, Jin (2006) laments that the state has
no mechanism to provide compensation, though there is a form of compensation
for the mental injury caused by the offender. The Chinese criminal procedure
code also provides provisions for the protection of witnesses (Zheng 2008). China
further forbids abuse of power and takes strong steps to protect its citizens from
abuse of power (Jin 2006).
Voices for the compensation from the state to the victims of crime have recently
been raised (Qihui and Yinan 2012). Zheng (2008, p. 494) asserts that ‘although
victims’ rights can be systematically and comprehensively written into the statute,
those rights shall mean little for victims without a supporting structure in state
authority and judicial process’. Also Jin (2006, p. 154) feels that though China is
doing better with the rights of the victims of crime, ‘compared with the require-
ments of the United Nations Declaration the protection and redress of victims in
China still have a long way to go’.

India
The Indian subcontinent is one of the regions with an older history of victim
rights. In ancient India, victim offender mediation was a common aspect, based
on revenge (Jaishankar et al. 2008). Tribal courts ensured justice to the victims of
72 K. Jaishankar

crime. Later, Manusmriti,14 one of the oldest laws in the world, was promulgated,
and the rights of victims of crime were ensured. However, Manusmriti was dis-
criminatory in its legal provisions, because it posed different sets of punishments
to people based on the Varna system (caste hierarchy), which is a derogatory sys-
tem (Jaishankar and Haldar 2004). Also, Artha Sastra,15 one of the oldest treatises
on the state, includes references to provisions for funds for victim compensation.
The Tamil legend Thiruvalluvar in his famous couplets ‘Thirukurral’16 empha-
sized equal justice for everyone and provided verses for victim offender media-
tion (Periyar and Jaishankar 2004). As mentioned earlier, during the medieval
period the Mughal Emperors provided justice to the victims of crime based on
Islamic Justice. Restitution was common during the Mughal period (Jaishankar
et al. 2008).
Unfortunately, when the British colonized India, the substantial and procedural
laws created by them did not consider the rights of victims of crime. Though India
is still following the same laws provided by the British, even after independence,
some changes have been made in the substantial and procedural laws over the
years to provide solace to the victims of crime. The Indian constitution, through
parts III and IV, ensures victim’s right for justice and fair trial. The right is fur-
ther ensured through specific provisions of the criminal procedure code and other
laws.17 Apart from some provisions, the judiciary ensured the rights of victims of
crimes by various landmark judgements.18
Even though a specific victim law is not available, some contemporary devel-
opments related to the rights of victims provide hope to the victims of crime
in India. Of these developments, the Malimath committee recommendations
(2003) are the most laudable19 (Jaishankar et al. 2008). The Malimath Committee
especially has given extraordinary recommendations in the areas of victim partici-
pation in the trial and investigation, and rights of the victims and victim compen-
sation in line with the UN declaration. Even though most of the recommendations
were not implemented, some were, especially in the criminal procedure amend-
ment (2009).
Based on some of the recommendations of the Malimath Committee, the rec-
ommendations of the Law Commission of India and Supreme Court Guidelines,
the Criminal Procedure Code of India (CrPC) was amended and put into effect on
31 December 2009. The most important component of the amendments is perhaps
the introduction of the definition of ‘victim’. This is the first ever time any Indian
law has had an appropriate definition of victim. Clause (w) has been inserted in
section 2 of the CrPC:

‘victim’ meaning a person who has suffered any loss or injury caused by rea-
son of the act or omission for which the accused person has been charged and
the expression ‘victim’ includes his or her guardian or legal heir.

This definition is closer to the definition provided by the 1985 UN Declaration

of the Basic Principle of Justice for the Victims of Crime and Abuse of Power,
 Rights in Newly Industrialized Countries 73

except for the inclusion of bystanders who assisted in preventing victimization,

as ‘victims’. However, considering the contemporary unfortunate status of crime
victims in India, the inclusion of the definition of ‘victim’ should be hailed as a
positive step in the recognition of victims’ rights.
The following are some of the other major amendments which will further assist
the victims of crime in India: Clause (1) of Section 357 A deals with the prepara-
tion of a scheme for providing funds for the purpose of compensation of victims
or his/her dependents who have suffered loss or injury as a result of the crime and
who require rehabilitation (Lawteacher.net 2011). In this context of new provi-
sions for the victim assistance fund, it should be noted that in 1995 Tamil Nadu
was the first state in India ever to establish a ‘Victim Assistance Fund’, of 10
million (1 core) rupees. The Victim Assistance Fund is for the grant of financial
assistance to the legal heir of the victims of murder and the victims of grievous
injury and rape (Rufus and Ramdoss 2008; Chockalingam 2009). Furthermore, a
scheme for providing restorative justice to victims of rape through financial assist-
ance as well as support services has been formulated by the Ministry of Women
and Child Development, Government of India. Under this scheme, NGO’s are
given funding to provide assistance to victims of rape for an amount of 300,000
(3 lakhs) rupees.
Clause (2) states that whenever a recommendation is made by the Court for
compensation the District Legal Service Authority or the State Legal Service
Authority, as the case may be, shall decide the quantum of compensation to be
awarded under the above-mentioned scheme (Government of India 2009; Law-
teacher.net 2011).
In clause (3) the trial court has been empowered to make recommendations
for compensation in cases where either the quantum of compensation fixed by
the Legal Services Authority is found to be inadequate, or where the case ends in
acquittal or discharge and the victim has to be rehabilitated (Government of India
2009; Lawteacher.net 2011).
Clause (4) states that even when the offender is not traced or identified, but the
victim is identified, and when no trial takes place, the victim or his/her dependents
may make an application to the state or the District Legal Services Authority for
award of compensation (Government of India 2009; Lawteacher.net 2011).
Clause (5) says that on receipt of such recommendations or on the application
under clause (4), the state or the District Legal Services Authority shall, after
due enquiry, award adequate compensation by completing the enquiry within two
months (Government of India 2009; Lawteacher.net 2011).
Further, Clause (6) of the newly introduced section states that the state or the
District Legal Services Authority, as the case may be, to alleviate the suffering
of the victim, may order for immediate first-aid facility or medical benefits to be
made available free of cost on the certificate of the police officer not below the
rank of the officer in charge of the police station or a Magistrate of the area con-
cerned, or any other interim relief as the appropriate authority deems fit (Govern-
ment of India 2009; Lawteacher.net 2011).
74 K. Jaishankar

The most significant amendment apart from the definition of ‘victim’ is Section
372, which speaks of a general right to appeal and restricts the right to only those
situations as provided for in the CrPC or any other applicable law. This section
now provides a victim a specific right of appeal in the following circumstances:
acquittal of the accused, conviction for a lesser offence and inadequate compensa-
tion (Government of India 2009; Lawteacher.net 2011). A landmark judgement
related to Section 372 provided by the Bombay High Court strongly emphasized
the amendment with a change in the provisions: ‘The Bombay high court has
ruled that such victims or their legal heirs do not require permission from the court
to file an appeal in order to challenge a trial court verdict’ (earlier the victim had
to seek permission from the court) (Thomas 2012).
In spite of the fact that a law on victims’ rights is not promulgated, the CrPC
amendments of 2009 are a positive sign as this shows that the Indian Criminal
Justice system is trying to change its perception towards victims. However, the
discretion of judges in relation to compensation is still emphasized and there is
no statutory right for victim compensation (Lawteacher.net 2011). Still, the judi-
ciary has to play a leading role in implementing these laws in various forms of
judgements and guidelines. The implementation of these laws has to be regarded
over a period of time (Sarkar 2010). It is all too likely that if current judicial atti-
tudes towards crime victims do not change, the above amendments will become
a farce.

Malaysia
Malaysia, a nation in the South East, is a colonized nation like India. Its laws are
similar to those of all colonized nations, except for the constitutional provision of
a dual justice system of secular and sharia laws, which is unique in nature. Puni-
tive justice is still followed in Malaysia. There is a rise of criminal victimization
over the years and the legal system is struggling hard to provide justice to the
victims of crime: ‘In Malaysia, more specific protection for the rights of victims
is provided for victims of domestic violence and child abuse. However, there is no
such specific legislation that protects the rights of victims of other crimes’ (Hussin
2010, p. 39).
Even though the constitution of Malaysia guarantees basic freedoms includ-
ing equality, life, liberty, privacy, speech, etc., the question of victims’ rights
still needs to be addressed properly. Hussin (2010) has pointed out that the basic
right of crime victims is enshrined in Article 8 of the constitution which guaran-
tees equality. But at the same time, bringing the offender to trial under specific
provisions in cases other than domestic violence and child abuse cases depends
largely on the prosecutors and the police and hence the victims may be deprived
of actual restitution.
Even though the Malaysian constitution under article 98 mentions that compen-
sation must be charged from the consolidated fund, the concept of compensation
is holistically seen from the perspective of ‘general’ victims and not from the
 Rights in Newly Industrialized Countries 75

crime victims’ perspectives. Crime victim’s compensation is largely dealt with

by the Malaysian criminal procedure code (Hussin 2010). ‘Section 426 (1) of
the Criminal Procedure Code gives power to the court to order compensation to
victims of offences and costs of prosecution’ (Ismail 2011, p. 179). The judge
will decide on the beneficiary of victim compensation according to Section 426
(Amin 2000). Apart from this single provision, most of the provisions of criminal
procedure code award imprisonment and fines, thereby making fewer attempts to
compensate the victim and punishing the offender more through the process of
imprisonment. Similar to the South African victim’s charter, Malaysia provides for
opportunities for a civil suit for victims against offenders for claiming compensa-
tion. Hussin (2010) further points out that victims of crime in Malaysia retain the
right to assistance only under specific laws under which the offenders would be
booked. The right to assistance, especially for female victims in cases of rapes,
domestic violence and child abuse is specifically established in the Malaysian
criminal procedure code (Devi 2006; Ismail 2011).
Apart from the constitutional provisions for the victims of crime in Malaysia,
new provisions are also made in the Malaysian Criminal Procedure Code for the
benefit of the victims of crime. Hussin (2011) examined some of the new provi-
sions of the Criminal Procedure code of Malaysia and felt that they have given
some voice to the victims of crime in Malaysia. In particular the victim is given a
chance to speak and for the first time the right to make a Victim Impact Statement
(S.183A) is allowed, the statement to be considered during the pronouncement
of judgement (Hussin 2011). A new provision of victim compensation is intro-
duced which is actually restitution by the offender (S.426 1A). While lauding the
above new provisions for the victims of crime, Hussin (2011, p. 2403) cautions
that: ‘these provisions are insufficient and limited. Most of the victim-related leg-
islations in Malaysia focus on the physical protection of victims. Nevertheless,
emotional and psychological protections as well as financial compensation are
not sufficiently provided.’ Ghafar’s study (University of Leicester 2010) on vic-
tim policy in Malaysia endorses the views of Hussin (2011) and suggests that
‘Malaysia’s policy is underdeveloped and it lacks a specialised agency to prepare
victims for court proceedings’ (University of Leicester 2010, para. 3).

Mexico
Mexico is a country which is on the verge of transition in providing rights for
victims of crime. Plagued by organized crime, especially the drug mafia, it is
the country that perhaps most needed the required law for victim compensation.
On 30 April 2012, the Mexican Congress approved a bill for the creation of a
separate law for victim compensation, especially for organized crime victims
(BBC 2012). This law was made possible because of the persistent efforts of
activists Javier Sicilia and Teresa Carmona, who themselves were victims of
organized crime. ‘This law covers the dead, wounded, kidnapped or missing. It
also would cover victims of other crimes, like extortion. The law will establish a
76 K. Jaishankar

national registry of victims and set aside funds to compensate them’ (Associate
Press 2012, paras. 2, 4).
As well as this new law, the Mexican constitution guarantees basic fundamen-
tal rights including the right to equality, life, liberty, property, speech, education,
home, privacy, etc. The constitution also guarantees access to justice and fair
treatment by law through Articles 17 and 20 (Vazquez 2005). Article 17 specifi-
cally emphasizes that judicial services shall be free of charge for victims and
defendants. Parker (2002, para. 3) says:

In 2001, Mexico amended Article 20 of the constitution to guarantee the

victims the right to: legal assistance, information about developments in the
case, assistance from the prosecutor’s office, all information requested, medi-
cal and psychological assistance, reparation from the offender.

Article 20 of the Mexican constitution recognizes and guarantees the rights of the
victims for restitution (Parker 2002; Vazquez 2005). Even though the provision
specifically mentions granting bails to the offenders, it also lays down guidelines
whereby the law can deny this right to the offender in view of the security and res-
titutive interest of the victim. In its second part, Article 20 also guarantees victims’
right to legal assistance, medical-psychological-legal help, and assistance from
the prosecutor’s office, assistance for security and compensation. The provision
highlights that ‘convicted felons’ will not be exempted from paying compensa-
tion towards the victims. The provision also highlights the rights to privacy for
minor victims who have been subjected to offences such as rape and kidnapping,
and states that underage victims cannot be compelled to see the offenders or the
accused persons for recording their statements. As Shirk (2011, p. 210) puts it:

Under Article 20, crime victims can file a criminal motion before a judge in
certain cases, which will exert pressure on public prosecutors to investigate
cases. Also privacy protection and a system for the redressal of grievance
through mediation are provided.

In Mexico, there are many instances of child abuse cases, especially of children
being used for drug dealing. Even though the Mexican constitution has addressed a
child’s right to education, home, nutrition and family, it has not yet addressed these
critical issues properly, when children are involved in crimes and are turned into vic-
tims themselves. The constitution has addressed only the right of the underage vic-
tims with regard to rape or kidnapping. Even though Article 16 of the Mexican con-
stitution lays down strict rules prohibiting unnecessary infringement of privacy by
the government agencies on civilians,20 the report by Human Rights Watch pointed
out that there are several cases of torture, killings and ‘enforced disappearances’ by
the military and the police (Human Rights Watch 2011). The report further stated
that there are gross instances of violating the norms of Article 20 in regard to forced
extraction of statements and fair trial (Human Rights Watch 2011).
 Rights in Newly Industrialized Countries 77

Philippines
Philippines is yet another colonized nation: it was colonized by USA and Spain.
Philippines has modelled its law based on the US legal system and this respect is
similar to all colonized nations. Many of the legal provisions from the US model
that are helpful to the victims are in place, and Philippines is one of the nations
with progressive legislations supporting victims of crime. The Constitution of
Philippines guarantees basic fundamental rights to every citizen. Articles 11 and
12 guarantee the right to access to courts and fair trial and the constitution prohib-
its any discrimination on grounds of poverty. The constitution also guarantees the
right to access information about prosecution proceedings. The constitution (arti-
cle 12) further guarantees assistance and compensation for crime victims. It also
establishes laws with regard to victim’s rehabilitation in cases of violent crimes.
Apart from the above provisions, victims of crime have several procedural rights
under Article 203 of the revised penal code. Victims of crime have the right to
counsel, to secure witnesses and to subpoena records and documents. Also, vic-
tims of rape have special rights such as free legal assistance and medical examina-
tion. The rights provided to rape victims under the anti-rape law are impressive.
Apart from the victims, witnesses also ‘enjoy rights and benefits under the Wit-
ness Protection, Security and Benefits Programme implemented by the Depart-
ment of Justice’ (Redress 2003, p. 9). According to Article 2 of Republic Act No.
6981 24 April 1991, known as the Witness Protection, Security and Benefits Act,
witnesses enjoy many rights, such as, ‘right to a secure housing facility, assistance
in obtaining a means of livelihood, securing his or her employment, provision of
travel expenses and subsistence, free medical treatment for any injury incurred or
suffered as a result of witness duty’ (Redress 2003, p. 9).
Notably, in 2010 a victim bill which was conceptualized in 1998, modelled on
the lines US Victim Law, titled ‘An Act defining the rights of victims of crime,
establishing the Office of Victims of Crime under the Department of Justice and
for other purposes’ or the ‘Victims of Crimes Act’ was tabled in the Congress of
Philippines for approval (Congress of Philippines 2010). However, for reasons
that are not clear the bill failed to attain the status of law. Section 4 gives detailed
rights of the victims:

crime victims will have the right to be given information about victim serv-
ices, to receive information about the status of the police investigation, pros-
ecution, court case etc, timely disposition of case, the opportunity to attend
court proceedings, reasonable protection from the accused.
(Congress of Philippines 2010, p. 3)

This bill also created a crime victims fund for the payment of compensation. Vic-
tims can claim compensation and also a right to restitution under specific laws. It
may be pointed out that victims and witnesses enjoy special protection and rights,
including the right to material, medical and legal assistance under the proposed
78 K. Jaishankar

law (Congress of Philippines 2010). It is to be hoped that Philippines makes the

effort to give this progressive legislation the status of law.

South Africa
South Africa is a unique nation with both a modern and a tribal culture. It was
ruled by Holland and Great Britain for a long time before it attained its independ-
ence. Hence the influence of colonization can be seen, influencing the develop-
ment of laws, and also related to the rights of the victims of crime. Criminal
victimization in the form of rape, sexual assault, domestic violence and violence
in other forms is common in South Africa and the country is struggling to provide
adequate justice to victims of crime. There are significant provisions that exist
within the legal21 and policy22 framework in the South African context which seek
to empower victims of crime (Victim Empowerment South Africa 2005). Even
though ‘the Constitution (1996) does not make specific mention of crime victims’
(Frank 2007, p. 16), it guarantees basic freedoms to every resident. This basic
right includes the right to access to justice and fair trial. The service charter for
victims of crimes in South Africa, popularly known as the Victim’s Charter, was
created in accordance with section 234 of the constitution, specifically highlight-
ing the right to a fair trial and access to justice for every victim (clause 1). The
right includes privacy during trial and aims to minimize secondary victimization
at the hands of the criminal justice machinery. The right also includes the right
of the victim to be part of the criminal prosecution for accessing information or
contributing information.
The victim’s charter further highlights the right to restitution in case of
damage or grabbing of property and assets by the offender; assures protec-
tion against any risk of physical danger to the victim from the offender; and
guarantees assistance from the police, prosecutors, courts and court officials.
The charter also guarantees compensation to the victim in the case of crimi-
nal offences. The victim can proceed with a civil suit against the offender if
the criminal court does not award compensation: the compensation has to be
provided by the offender as prescribed by law, in other words, restitution.23
In another development on these lines, Dianne Kohler Barnard, a Member
of Parliament, has initiated a fund for a victims of violent crimes bill, which
promises easy access to rightful compensation for victims of violent crimes
(Democratic Alliance 2012).
Even though the constitution and the charter of victims’ rights assures rights
against secondary victimization, abuse of power by police for cases of alleged
civil disobedience are not ruled out by Human Rights Watch (2012b). Also, vari-
ous NGOs and activists make the criticism that the South African victim policy is
merely on paper without any solace to the victims in reality (Democratic Alliance
2007). ‘Many victims of crime complain that they are victimised twice, first by
the criminals and then by the criminal justice system, which emphasises crime
as an offence against the state and displays insufficient concern for the plight of
 Rights in Newly Industrialized Countries 79

victims’ (Democratic Alliance 2007, p. 3; De-Villiers 2006). Democratic Alliance

(2007) feels that the rights provided for in the Victims Charter are quite vague
and limited and do not have provisions for a victim assistance fund. Also, there is
no coherence of various victim policies (Democratic Alliance 2007; Frank 2007).
Notwithstanding these criticisms, South Africa has made strides in ensuring the
rights of the victims of crime. Frank (2007, p.vi) asserts that ‘the advent of victim
policy in South Africa is a critical step towards harnessing both the human rights
and crime prevention benefits that services to victims may offer’. However, Frank
(2007, p.vi) also cautions that mere access to services will not help; rather it will
be the quality of the services that will determine the level of assistance given to
the victims of crime.

Thailand
Thailand, a Constitutional Monarchy, has shown promise in providing effective
victim services and has significant provisions and laws in place related to the
victims of crime. ‘Although the new Constitution was made in 2007, it was the
1997 version that first integrated the two main concepts for victim’s compensation
namely: the rights of crime victims and the miscarriage of justice’ (Mahidol 2009,
p. 6). Mahidol (2009) feels that the constitutional provisions paved the way for a
new law for victims in 2001, the ‘Victim Compensation Act of 2001’, which pro-
vides compensation to victims of crime, covering most expenses (Watanavanich
2006). Part 4 (section 40) of the constitution of Thailand ensures several rights
of crime victims.24 Individuals have the right to access the judicial process easily
and without any discrimination; the right to be part of the prosecution procedure,
contributing to and accessing relevant information; and protection of witnesses as
well as victims is guaranteed. While the criminal justice system largely supports
restitution for female victims of domestic violence (Kittayarak 2005), the ordi-
nary victims of crimes are guaranteed the right to compensation under section 245
of the constitution. However, a victim is generally not allowed to carry forward
civil suit against the offender and the compensation is disbursed from the state
fund (Kittayarak 2005).
Apart from the constitutional provisions and the Victim Compensation Act
2001, victims are provided rights in the criminal procedure code and there is a vic-
tim assistance fund (Watanavanich 2006; Mahidol 2009). Furthermore, Thailand
is a progressive nation in implementing restorative justice processes in selected
areas such as juvenile justice, domestic violence, probation, and for adults who
are in prison serving sentences of less than five years’ duration (Kittayarak 2005).
While being highly positive about the current situation of victims of crime in
Thailand, Mahidol (2009, p. 7) was also open in being cautious on the implemen-
tation issues. She opines: ‘In practice, some shortcomings involving the imple-
mentation of these laws are, for example, the delay in processing compensation
claims, the lack of public understanding of their rights to remedy, or even of the
existence of the laws.’
80 K. Jaishankar

Turkey
Turkey, a European nation which is yet to be a part of the European Union, has
some provisions related to the rights of victims of crime in its constitution and
criminal procedure code. But there is no separate law for victims of crime. The
constitution of Turkey guarantees basic freedoms and right to access the judici-
ary and a fair trial under article 19 and also under article 36 which states that
everyone has the right of litigation either as plaintiff or defendant and the right
to a fair trial before the courts through lawful means and procedures. No court
shall refuse to hear a case within its jurisdiction. The constitution through article
19 and article 36 assures the right to restitution and compensation. Individuals
have the right to own property under article 35 and in case of infringement of
this right the constitution assures restitution through article 36. However, arti-
cle 38 mentions that criminal responsibility should be personal and article 19
highlights that compensation has to be paid by the state in cases of damages suf-
fered by individuals in the way of treatment by criminal justice machinery. The
constitution takes stern action against abuse of power. In cases of rape or torture
and any other cases involving abuse of human rights by persons belonging to
government agencies, the constitution prescribes immediate action by higher
authorities and the courts.
Apart from the constitution some rights of the victims of crime are ensured in
articles 233–237 of the Turkey criminal procedure code and a mediation regula-
tion is available (Yenisey 2009). The rights provided in the criminal procedure
code only include rights of participation of victims during the investigation and
prosecution stage: the victims are eligible for pecuniary compensation, although
this is not appropriately regulated (Yenisey 2009). Another significant problem
of rights implementation in Turkey is that the police are less aware of the rights
of the victims and lack training on the rights of victims of crime. This makes the
victims in Turkey more vulnerable. In this context, it is perhaps appropriate for
Turkey to enact a new law for victims of crime or, if they join the European Union
in the future, the EU Framework Decision on Victims (now Directive, see contri-
bution from Ezendam and Wheldon, this volume).

Major challenges in the implementation of victim

rights in the newly industrialized countries
Some of the major challenges faced by NICs in implementing victims’ rights
include the following.

1 Too much focus on restitution of social order and not enough on the personal
injuries of the victims.
2 Usage of judicial discretionary power in deciding the rights of the victims.
3 During the prosecution stage there is more focus on the custodial rights of the
offenders than on the rights of the victims.
 Rights in Newly Industrialized Countries 81

4 There are almost no separate law emphasizing victims’ rights, unlike in the
developed countries.
5 Problem of police apathy towards victims.
6 Corruption in the criminal justice system; this prevents victims from getting
justice when the offender is more influential.
7 Witness protection rules are poorly implemented.
8 There is a lack of proper coordination between the prosecution and the
police.
9 Judges are overburdened with huge numbers of cases.
10 Colonial penal laws still exert an heavy influence on the legal system.

Recommendations for the future

The following recommendations can be formulated to help NICs better implement
victims’ rights:

1 Victim rights laws should be restructured based on the domestic ancient legal
manuals in light of modern victim right treatises, discarding colonial laws.
2 The jury system should be introduced for effective implementation of victim
rights.
3 Pecuniary punishments should be favoured more than prison sentences.
4 Overburdening the judges with many cases should be discouraged.
5 Victim supportive laws should be created in preventing victims turning into
offenders.
6 Therapeutic advocacy by legal practitioners should be encouraged.
7 Petty crimes should be settled outside the courts and compoundable offences
should be mediated.
8 Stronger domestic laws and international regulations should be developed to
tackle cross-border crimes and victimization.
9 NGOs working for the welfare of the victims should be involved in assisting
the police and other wings of criminal justice system, for specific types of
crimes such as cybercrime.
10 Victim provisions should be blended with the elements of both inquisitorial
and accusatorial systems.

Conclusion
Of the nine NICs analysed, only a few show great promise in the implementa-
tion of the rights of victims of crime. Many countries have a long way to go in
the successful implementation of the rights of the victims of crime. Except for
Thailand and Latin American countries such as Mexico and Brazil, no NIC has
separate legislation for victim compensation. Though Philippines has a bill on
victim compensation, this has not got the status of law. Philippines can act fast
in implementing its victim compensation bill which will surely ameliorate the
82 K. Jaishankar

problems of the victims. In light of the above, Thailand probably ranks as the top
NIC, guaranteeing the rights of victims by specific legal procedures and having a
separate law for victim compensation. South Africa also shows some promise in
ensuring the rights of crime victims. The 2009 amendments of the Indian Criminal
procedure code show some light at the end of that country’s tunnel. The Chinese
blend of inquisitorial and accusatorial system and its restorative processes are
quite commendable. Malaysia also shows some promise in the implementation of
victim rights. But except for Thailand, all NIC countries analysed in this chapter
need to revamp their criminal justice system to focus more on the rights of victims
of crime. I hope the recommendations provided above will be helpful to a certain
extent.

Acknowledgements
I sincerely thank Assoc. Professor Dr Nasimah Hussin, Ahmad Ibrahim Kulliyyah
of Laws (Law Faculty), International Islamic University, Malaysia, for providing
her articles on Malaysian rights of victims of crimes, which were very useful.
From the bottom of my heart, I thank Dr Debarati Halder, Advocate and Managing
Director, Centre for Cyber Victim Counselling (CCVC), India, for assisting me in
the legal analysis.

Notes
1 Cuneiform law (2350–1400 BC), Code of Urukagina (2380–2360 BC), Code of Ur-
Nammu, (ca. 2050 BC), Laws of Eshnunna (ca. 1930 BC), Codex of Lipit-Ishtar of Isin
(ca. 1870 BC), Code of Hammurabi (ca. 1790 BC), Code of the Nesilim (c. 1650–1500
BC), Hittite laws (ca. 1650–1100 BCE), Hebraic law / Hebrew Bible / Old Testament
(Mosaic Law) (ninth–fth century BC), The Draconian constitution (seventh century
BC), Gortyn code (fth century BC), Twelve Tables of Roman Law (451 BC) and
Manusmriti (second or third century AD, India).
2 The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power 1985, dened the term ‘victims’ as ‘persons who, individually or collectively,
have suffered harm, including physical or mental injury, emotional suffering, economic
loss or substantial impairment of their fundamental rights, through acts or omissions
that are in violation of criminal laws operative within member states, including those
laws proscribing criminal abuse of power’.
3 Ibid see clause A and B.
4 Under clause B, the Declaration states as follows:
Art.19. States should consider incorporating into the national law norms proscribing
abuses of power and providing remedies to victims of such abuses. In particular, such
remedies should include restitution and/or compensation, and necessary material, med-
ical, psychological and social assistance and support.
Art.20. States should consider negotiating multilateral international treaties relating to
victims, as dened in paragraph 18.
Art.21. States should periodically review existing legislation and practices to
ensure their responsiveness to changing circumstances, should enact and enforce,
if necessary, legislation proscribing acts that constitute serious abuses of political or
 Rights in Newly Industrialized Countries 83

economic power, as well as promoting policies and mechanisms for the prevention
of such acts, and should develop and make readily available appropriate rights and
remedies for victims of such acts.
5 Latin for you have the body. Prisoners often seek release by ling a petition for a writ of
habeas corpus. A writ of habeas corpus is a judicial mandate to a prison ofcial order-
ing that an inmate be brought to the court so it can be determined whether or not that
person is imprisoned lawfully and whether or not he should be released from custody. A
habeas corpus petition is a petition led with a court by a person who objects to his own
or another’s detention or imprisonment. The petition must show that the court ordering
the detention or imprisonment made a legal or factual error.
6 Alternative social obligation is an ethical theory that an entity, be it an organization or
individual, has an obligation to act to benet society at large. For example, a judge may
order an offender to serve in a school to clean its premises for fteen days or more.
7 However, clause XLVII (a) of Article 5 further claries that the death penalty can be
awarded in the event of declared war, according to Article 84 XIX.
8 See title II, Chapters IV, VII, Title IV, chapters I, II and III of the Brazilian constitu-
tion.
9 Article 40, 41 of Criminal Procedure Law.
10 Article 170 of Criminal Procedure Law.
11 Article 36 of Criminal Law.
12 Article 64 of Criminal Law.
13 Articles 36, 64, 88 of the Criminal Law; Articles 77, 78 of the Criminal Procedure Law
(Chapter VII Incidental Civil Action); A Regulation on Incidental Civil Action in the
Supreme People’s Court of China.
14 About the second or third century AD, Manu, an important Hindu jurist, drew up the
Dharmasastra code, which was called as Manusmriti. The code recognized assault and
other bodily injuries and property offences such as theft and robbery (Grifth 1971;
Pillai 1983; Thapar 1990; Raghavan 2002). ‘Manusmriti dealt with the duties of a king,
the mixed castes, the rules of occupation in relation to caste, occupations in times of
distress, expiations of sins, and the rules governing specic forms of rebirth. Though a
theoretical textbook, Manusmriti dealt with the practicalities of life and was largely a
textbook of human conduct’ (Jaishankar and Haldar 2004, para 2).
15 An ancient book on the principles of state, written by Kautilya some time in the period
321–296 BC.
16 The Thirukkural, a book of Justice and code of ethics and the most popular, most widely
esteemed Tamil classic of all time. The word ‘Thiru’ denotes sanctity, and ‘Kural’ means
the short verses (couplets). Thiruvalluvar, a poet and philosopher of India, wrote the
Thirukkural 2000 years ago in the rst century BC. It consists of 133 chapters on differ-
ent aspects of life, and each chapter consists of ten couplets. It is global in perspective
and has universal applicability.
17 The legal provisions with regard to the compensation to the victims of crime in contem-
porary India are found in the Code of Criminal Procedure 1973 under Sections 357, 358
and 359 (for a detailed analysis see Srinivasan and Mathew 2007) and under Section 5
of the Probation of Offenders Act 1958 and some other statutes, for example Section 22
of the Cattle Trespass Act 1872, Sections 42 and 76 of the Forest Act 1972, and Section
1 of the Public Gambling Act 1967 (Srinivasan and Mathew 2007; Das 2008; Rufus
and Ramdoss 2008). Though these provisions have the connotation of ‘compensation’,
actually it is restitution (Chockalingam 1993, 2009). This is because the compensation
is provided by the courts from the ne levied on the offender.
84 K. Jaishankar

18 See generally Hari Kishan and State of Haryana v. Sukhbir Singh; Mrs. Cardino v
Union of India; Nilabati Behera v. State of Orissa; Chairman, Railway Board v. Chan-
drima Das; Palaniappa Gounder v. State of Tamil Nadu; Sarwan Singh v. State of Pun-
jab; Rachhpal Singh v. State of Punjab; Guruswamy v. State of Tamil Nadu; Bipin
Bihari v. State of Madhya Pradesh; Mangilal v. State of Madhya Pradesh; Bhaskaran v.
Sankaran Vaidhyan Balan; Sarup Singh v. State of Haryana; Manjappa v. State of Kar-
nataka, and Vishaka v. State of Rajasthan. (for a detailed analysis of these case laws,
see Srinivasan and Mathew 2007).
19 For a detailed analysis on the Malimath Committee Recommendations on Victims of
Crime, see Jaishankar et al. (2008).
20 See Article 16 of Mexican constitution.
21 The existing legislative framework governing victim empowerment, specically, com-
prises the Domestic Violence Act No. 116 of 1998; the Criminal Law (Sexual Offences
and Related Matters) Act 32 of 2007; the Judicial Matters Second Amendment Act No.
55 of 2003; the Older Persons Act 2006 (Act No. 13 of 2006); The Children’s Act No
38 of 2005; and the Child Justice Act No. 75 of 2008, amongst others.
22 Some of the policy provisions are: The National Crime Prevention Strategy (1996);
the Service Charter for Victims of Crime in South Africa (2004); the National Victim
Empowerment Programme (1999); and the National Prosecuting Authority’s draft Uni-
form Protocol on Victim Management (2005).
23 See p. 3 of the service charter for victims of crimes in South Africa.
24 See section 40 of the Thailand constitution.

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Chapter 5

Should reparations for massive human

rights abuses perpetrated on African
victims during colonial times be given?
Jeremy Sarkin

Introduction
The issue of the rights of African victims of the colonial period is an understudied
and under-researched area (Ulrich and Boserup 2001). However, the inhabitants
of Africa even during the colonial period had rights and are attempting to claim
reparations today based on those rights (Sarkin 2004a). For this reason, dealing
with the issues that occurred during colonial times in Africa is highly controver-
sial (Spitzer 2002, p. 1). There are many who argue that such rights do not exist
and that such claims should not be supported, even though the effects on Africa
and its inhabitants of what occurred many years ago are still being felt today
(Howard-Hassmann and Lombardo 2008).1 Those opposed to Africans having
such rights argue that for legal, political, cultural, economic and practical reasons,
those rights never existed and reparations to Africans are not justified, not legally
due and ought not to be paid.2 These issues are contentious (Brooks 1999; Osabu-
Kle 2000; Wareham 2003, p. 228) partly because it is agreed that genocides,
crimes against humanity, exterminations, ethnic cleansing, disappearances, land
expropriation, forced labour, the use of comfort women, experimentations and
other gross human rights violations were committed by colonial governments and
multinational corporations. The question that is raised, however, is whether states
and corporations had legal duties to those upon whom the violations were com-
mitted. Those who do not support claims by Africans argue that what occurred
were not crimes or human rights violations when they occurred as international
law at the time did not prohibit such conduct, that anyway too long has passed and
that the victims of these atrocities are no longer alive. Thus, the argument made
is that rights did not exist and even if they did the passage of time has made them
extinct. It is also argued that the former colonizers recognize their responsibili-
ties3 and give development aid to the countries they once occupied, and this is just
compensation for what occurred.
Thus, should inhabitants of former colonized states, even if not directly
affected by the events during those times, be able to get reparations, in all of its
various forms, from the states who committed such abuses? Or if the state is no
longer in existence, should they be able to get reparations from the states that
90 Jeremy Sarkin

succeeded them, or from the multinational corporations who aided and abetted
these violations at the time?
In this context in recent years the reparations issue for atrocities committed
during the colonial era has pressed its way to the fore of international legal debate
(Thompson 2002). For violations from a long time ago individuals cannot be pun-
ished as they are no longer alive and states cannot be held criminally account-
able according to criminal law, only civilly liable. Even holding a state liable is
extremely difficult as it is difficult to sue states.
Dealing with events from many years ago remains ignored in many parts of
the world, and where they are a focus of attention they are extremely marginal-
ized (Biondi 2003, pp. 5–18). The issues are contentious. Intellectual debates on
the issues concerning reparations for Africa are, however, of critical importance
(Lanham 2003). While there are some that argue that reparations are not due for
violations that occurred during colonial times, what is apparent is that there are
various positions on these questions. The position adopted is often dependent on
where those who take a particular stance come from in the world. Broadly speak-
ing, those in the Global South, including Africa, Latin America and Asia, support
reparations. Again, generally speaking, those in the Global North, in other words
(but with some exceptions), people in Europe and North America besides African-
Americans do not often support such claims. Again, divided by region, those in
the Global South argue that this is an issue whose time has arrived, while those
in the North argue that this is still a weak issue, which has not gained a great deal
of traction.
In this chapter, I argue that such claims are valid and payable legally and oth-
erwise, even if still not widely accepted. The landscape in the countries where
the atrocities were committed, because of the legacy of the past, at least in part,
presents a picture of extreme hardship. However, the perspective on the causes of
the major economic, social and cultural (Bhargava 2007) problems that exist in at
least some of these countries is contested. Some blame the effects of mismanage-
ment in the post-independence period. But at least some of the guilt rests with
those who caused massive human rights abuses during colonial times. Under-
development, which occurred in colonial Africa, has had a major effect on the
lack of infrastructure in many parts of the continent today.4 Those in the devel-
oped world benefitted unjustly then and do so still today from the resources, both
human and other, that were removed during the colonial era. While many of the
direct victims of colonial abuse are no longer alive, their descendants have lost
much as a result, including their inheritances and a great deal of land and live-
stock. Colonial atrocities have other political effects today, especially on some
minority groups in former colonized states. Some are minorities today because
of what was done to them during the colonial era. This has had massive politi-
cal effects. The rights of African victims today, the effect of colonial violations
on victims today and whether apologies ought to be given are the focus of this
chapter. Some of the issues to be addressed include why these matters are still
relevant today, sometimes more than a hundred years since they occurred, whether
 African victims during colonial times 91

there are precedents for such reparations, whether the time is ripe for such claims,
whether international law during colonial times forbade the conduct that occurred
and whether such claims are void because of the passage of time.
These issues must also be understood in the context of the rights of victims.
While most argue that human rights and victims’ rights specifically began only after
World War II, it is clear that victims had rights long before this, as will be examined.
Victims were in fact able to go before various courts to claim those rights. Victims
have been able for at least a century to claim theoretically, and in practice, repara-
tions where their rights were violated. The issues of victims’ rights to information,
reparation, and their difficulties in obtaining assistance will be addressed, as well as
some of the developments and strategies used to overcome obstacles.

Atrocities during Colonialism

The colonial period was filled with massive human rights abuse, including crimes
against humanity, war crimes, genocide (before the term was even conceived), extermi-
nation, disappearances, torture, forced removals, slavery, racial discrimination, cruel,
inhuman, or degrading treatment, and more (Sarkin 2004b). As has been noted:

Colonialists routinely practiced torture, cruel and inhuman treatment on the

African people. They committed crimes against humanity such as sexual
assault on African women. They plundered wealth, expropriated and priva-
tized African land and domestic animals; they decimated African wildlife and
plants; and they destroyed and looted Africa’s cultural property. A large pro-
portion of African cultural heritage is to be found in private and public col-
lections in Europe and North America.
(Gutto 1993, p. 34)

Africa suffered immensely during the colonial years (BBC News 1999). About
eighteen million Africans were traded as slaves and millions of Africans died dur-
ing the attempts to capture them or cross the seas with them (Lovejoy 2000, pp.
65–66, 142). Consequently, while in the sixteenth century Africans constituted
twenty per cent of the world population, by the nineteenth century they only rep-
resented twelve per cent (Blaut 1993, p. 184). In specific parts of Africa the death
toll was particularly severe. Under King Leopold II between five and ten million
people were massacred in the Belgian Congo. Yet, it was not only the Belgians
and Germans that exacted a high toll – other colonial powers also committed
gross human rights abuses. Thus, cases could be brought against Britain, Holland,
France, Germany, Belgium, Italy, Spain and Portugal (Gutto 1993, pp. 58–59).
The effects of these violations are still felt today. On 26 March 2012, the President
of the 66th United Nations General Assembly, Mr. Nassir Abdulaziz Al-Nasser, in
remarks delivered to commemorate the International Day of Remembrance of the
Victims of Slavery and the Transatlantic Slave Trade, noted with respect to slav-
ery and the slave trade that: ‘The terrible impacts of slavery and the slave trade
92 Jeremy Sarkin

are still felt to this day. They have devastated continents and countries. They have
led to profound social and economic inequalities, and have given rise to hatred,
racism and prejudice.’5
The day of commemoration is important, as it signifies the meaning that the
United Nations accords those events. Because of the consequences of having
approximately twenty-eight million people, mainly Africans (Thipanyane 2003,
p. 32) forced into slavery, this day of commemoration was declared in 2007.
Beyond the atrocities committed against Africa’s inhabitants,6 colonialists also
extracted and decimated the continent’s rich natural resources. The removal of
such resources represents just one aspect of the reparations that Africa deserves.
As has been noted by Michael Bayzler (quoted in Shelton 2004, p. 259; see also
Shelton 2003):

Not seeking financial restitution, in the face of documented proof that finan-
cial giants worldwide are sitting on billions of dollars in funds made on the
backs of … victims, which they then invested and reinvested many times over
…, amounts to an injustice that cannot be ignored.

As far as the legal issues are concerned there is also growing acceptance that
colonial abuses may have belated legal implications and that some of the coloniz-
ers’ actions do not merely retrospectively qualify as violations. There is a growing
acceptance that what occurred were already violations of international and domes-
tic law at the time. While it is commonly believed that international protections
against human rights violations began from the World War II era, they actually
existed much earlier. Legal history shows that a system for protecting groups’
and individual’s human rights in international law, never mind domestic law, was
available from at least the nineteenth century.

Recent developments
A reason why the issue of reparations is now so topical (see De Feyter et al. 2005) is
the fact that the matter of reparations for slavery and colonialism was a major, and
highly contested, agenda item at the World Conference against Racism, Racial Dis-
crimination, Xenophobia and Related Intolerance (WCAR), held in Durban (South
Africa) from 31 August until 8 September 2001 (Bossuyt and Vandeginste 2001).
Quite a considerable part of the World Conference was devoted to these themes.
The issue is also more relevant now because a number of countries, for example
Australia, New Zealand, Canada and South Africa, have been finding ways of deal-
ing with such issues from the distant past. Recently there have been a number of
developments which have seen the inhabitants of former colonized countries seek-
ing and in some cases receiving reparations from their former colonial masters. In
2009, Italy agreed to pay Libya US$10 billion for atrocities committed during the
colonization period (Israely 2008). Court cases have been filed against Britain,
Germany and other countries for the human rights violations that are alleged to
 African victims during colonial times 93

have been committed during their colonial periods. South Africans have filed cases
in the USA, under the Alien Torts Claims Act, against a variety of corporations for
their alleged complicit role in the apartheid system. In February 2012 US company
General Motors (GM) agreed to settle and pay damages to victims. Armenians still
want Turkey to apologize and compensate them for the genocide committed around
World War I. A number of other communities are attempting to sue multinational
corporations for their role in the commission of such atrocities during colonization.
These groups include the Herero of Namibia who have sued various corporations
including Deutsche Bank (Anderson 2005). Other groups that want to sue and have
sued include Tanzanians, Kenyans, Ugandans, African-Americans in the USA and
comfort women in various Asian countries who seek reparations from Japan and
others. In the USA the question of reparations to African-Americans for the slave
trade remains a controversial matter, with many in favour and many against. Since
World War II, Germany7 has spent more than $100 billion dollars on reparations
for violations committed by Nazi Germany to Israel and individual victims. It still
pays out about US$1 billion each year. Germany (Schwerin 1972) and other states,
including Belgium, France, Britain, the Netherlands and others have not, however,
been willing to pay out for human rights violations committed before World War II
(Howard-Hassmann 2007).
Various processes designed to obtain apologies and acknowledgements have
occurred in various places. In the United Sates there have been processes in 2009
and 2010 in Congress to adopt a resolution calling what occurred to Armeni-
ans, around World War I, ‘genocide’. Armenians have attempted for years to get
Turkey to apologize and compensate them for those events. In Spain there are
tremendous demands today to deal with the violations that occurred during the
Spanish civil war that took place between 1936 and 1939. Families of the more
than 110,000 victims who disappeared seek to have the mass graves that have
been found forensically examined. So controversial is this process that Span-
ish Judge Baltasar Garzón, who attempted to prosecute Chilean dictator General
Augusto Pinochet and wanted to investigate these matters, faced charges in Spain
for attempting to do so.
The fact is that such old matters do not end with the passage of time. This can
be seen from issues relating to World War II. There are still criminal trials being
held and a number of legal claims are still being litigated in a number of countries
today, more than sixty-five years after the end of the war. Thus, in April 2010,
the Duma, the Russian lower house of parliament, passed an amnesty law for
World War II crimes. Included were those who survived imprisonment in German
concentration camps, workers in munitions factories and survivors of the Lenin-
grad siege. Individuals who committed crimes during World War II are still being
prosecuted in various countries. A recent claim occurred in France against the
French railways for the role they played in the transport of Jews, political prison-
ers, homosexuals and gypsies to Nazi death camps. In 2010 Polish victims from
World War II mounted claims against German railway companies for the profits
made from charging those they transported to the death camps. Thus, issues from
94 Jeremy Sarkin

a long time ago still resonate in many parts of the world. The only real difference
between these claims and colonial claims is the ability of the claimants to have
their claims dealt with. This can be seen in the cases brought in the United States
against Swiss banks and other corporations in the 1990s. These cases were settled
for huge sums of money. Victims in former colonial states, however, do not have
the resources and political clout to achieve these results. Some have argued that
the fact that such cases are resolved, but colonial ones are not, is racism at work.
A number of former colonial communities are attempting to sue various role
players for the atrocities committed during colonization (Sarkin 2009). These
groups include the Herero of Namibia who have sued various corporations, includ-
ing Deutsche Bank in the United States. Another case has seen 228 Samburu and
Maasai farmers in Kenya receive £4.5 million in damages from the UK’s Ministry
of Defence after their family members were killed or maimed over the past fifty
years by British Army explosives left behind on military ranges in that country
(Sarkin 2009). A further case concerns rape allegedly perpetrated by British sol-
diers. The case against the British Ministry of Defence (MoD) by more than 650
Kenyan women is for rape cases allegedly carried out by British soldiers in Kenya
(OCHA 2003). The MoD is being sued for negligence in that it failed to take steps
to prevent the rapes. Another case concerns a challenge to a British court decision
made in 1913 to force some 10,000 Maasai off their land in Laikipia and into a
new area on the Tanzanian border, where they were affected by malaria (Redfern
2004). The Nandi people of Uganda are to sue Britain for killing their prophet
Koitalel arap Samoei in 1905 during a military campaign to suppress Nandi resist-
ance. The king of the Bunyoro in Uganda is also reported to be preparing to take
Britain to court for war crimes committed in the 1890s. Former Mau Mau freedom
fighters from Kenya will be in a British court in July 2012 claiming reparations
for human rights abuses, including torture, committed during colonial times (The
Standard 2012). They are seeking compensation from the British government for
atrocities committed against the Mau Mau before Kenya’s independence (The
Nation 2006). Another case relates to the massacres in German East Africa (now
Tanzania) between 1905 and 1907 in what was known as the ‘Maji Maji rebel-
lion’. It is believed that about 250,000 Ngoni, Matumbi, Waluguru, Makua, Yao
and Makonde people were killed (The East African 2006).
As can be seen, there are many cases. This indicates the extent to which people
in the former colonial territories want to have these matters dealt with (Sarkin
2009). This is so despite the massive difficulties that victims have in bringing such
cases and the lack of funding at their disposal to do so. It is true though that until
recently claiming reparations for historical violations has been extremely difficult.
This was due in part to the limited number of rights afforded to individuals and a
lack of specific means to obtain damages or reparations within the international
legal system dealing with human rights law or humanitarian law violations. While
the rapid growth of the reparations’ movement certainly has assisted potential
claimants to bring claims arising from colonial abuses, this does not discount the
fact that such claims were available in international law earlier. It is true, however,
 African victims during colonial times 95

that these victims could not practically bring such cases, for a number of reasons.
Certainly, obstacles still remain. These include issues such as statutes of limitation
which state that an individual has to file a claim within a certain period. Courts are
willing, at times, to forgo time periods that claims are meant to be lodged if it can
be shown that victims were unable to file claims earlier than they did. Certainly,
in such cases victims can show that filing such cases earlier than they have done
were impossible for a variety of reasons. There are many other groups that want
to bring such cases.

The development of the right to reparation

Reparation claims are not a recent phenomenon (Posner and Vermeule 2003). In
fact, at least since the end of the twentieth century, reparations processes are not
new at all. International law, never mind domestic law, has recognized the right
of the individual to claim human rights violations for at least a hundred years
(Bassiouni 2006, p. 203).
In 1796 the United States Supreme Court found in Ware v. Hylton that private
individuals had the right to compensation for acts that occurred during the Ameri-
can Revolution. The Court held that this was the case as rights were ‘fully acquired
by private persons during the war, more especially if derived from the laws of war
only against the enemy and in that case the individual might have been entitled to
compensation from the public…’ (United States Supreme Court 1796).
Claiming reparations for damages suffered is not a recent practice. In fact, at
the conclusion of warfare, agreements were often reached in terms of which a pay-
ment or a forfeit of land followed. For example, after the Franco–Prussian War of
1872, France paid Germany reparations (Posner and Vermeule 2003).
There are a number of treaties and instruments that provide for special interna-
tional tribunals or procedures to address violations of individual rights or obliga-
tions arising within these instruments (Sohn and Buergenthal 1973). The rights of
individuals in international law and their right to claim compensation or reparation
received further recognition in 1907 when individuals were even given standing
before the International Prize Court in terms of the Convention on an International
Prize Court of 18 October 1907. Individuals were to be able to approach the Court
in relation to property. However, insufficient ratifications occurred and the treaty did
not come into force. Also in 1907, a Central American Court of Justice was estab-
lished by Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua. The Court
operated from 1908 to 1918 and permitted a range of actors, including individuals,
to bring complaints against states other than their own country (Randelzhofer 1999).
This was no aberration in granting rights and providing procedures to individu-
als to claim reparations from states in international law. Article 304 of the Treaty
of Versailles provided for the establishment of a Mixed Arbitral Tribunals to hear
private claims arising from the payments of German debts to Allied nationals and
for the restitution of Allied property. Under the treaty, individuals were permitted
direct access to these tribunals. The German-Polish Convention of 1922 created the
96 Jeremy Sarkin

Upper-Silesian Arbitral Tribunal for the purpose of protecting minorities and their
property rights (Sohn and Buergenthal 1973). Article 87(b) of the Charter granted
the General Assembly and Trusteeship Council the authority to accept petitions from
inhabitants of the Trusteeship Territories. Other examples include the Polish-Dan-
zig Treaty, the minority treaties in the interwar years, and indirectly, the Mandates
Commission of the League of Nations (Forsythe 1991). The International Labour
Organization permitted individuals to file private petitions for violations of human
rights embedded in labour law (Forsythe 1991). An individual right to compensation
is also found in Article III of the Hague Convention of 1907. Thus, international
law has permitted individual claims from colonial times. Certainly it is true that the
notion that victims of human rights abuses are entitled to an effective remedy has
gained considerable international acceptance more recently, but this does not negate
the fact that claims were permitted a long time ago.
While the recent and rapid growth of the reparations movement has without
a doubt assisted potential claimants to bring claims arising from colonial abuses
this does not discount the fact that such claims were available under international
law earlier. It is true however, that many victims could not practically bring such
cases at the time, for a number of reasons. Even today, obstacles remain, includ-
ing hurdles such as statute of limitations, among others. But such hurdles are not
insurmountable, as evidenced by the recent success of various claims.

Should reparations be paid?

What is clear is that there is massive inequality in the world today. Many agree
that development aid ought to be given to the parts of the world where colonial-
ism occurred and where massive poverty exists. Part of the reason that such aid is
given is the sense of guilt about the gross human rights’ violations that happened.
It is recognized, albeit not always publically, that those who benefitted from the
colonial era have duties to those who suffered and still suffer today. Reparation is
about restitution and other types of reparations, including acknowledgement and
the restoration of dignity. More ought to be done to reconcile those who live in
different parts of the world. The fact that there is so much anger and unhappiness
directed by the Global South to the Global North is to some degree because of the
past. Finding ways of dealing with the past and repairing the fractured relation-
ships can only be beneficial for everyone in all regions.
There are many who argue that claims for reparations to Africa should not
be supported. They argue that, for legal, political and practical reasons, collec-
tive financial reparations to Africa are not a good strategy. While some base
their opposition to reparations for colonial atrocities on the fact that financial
reparations ought not to be paid partly on the cost involved,8 reparations do not
have to be monetary or monetary only. It is certainly problematic to agree that
reparations are owed, but then argue that only certain types of reparations
should be paid. Nevertheless, there are many different types of reparations.
Reparations can encompass a variety of concepts including damages, redress,
 African victims during colonial times 97

restitution, compensation, rehabilitation and satisfaction. Each of these con-

cepts has a unique meaning although they are often used as general terms to
encompass all the different types of remedies available to a victim. ‘Compen-
sation’ or ‘damages’ typically signify an amount of money awarded by a court
or other body for harm suffered. ‘Restitution’ signifies a return to the situation
before the harm occurred, ‘rehabilitation’ denotes provision of medical or other
types of treatment, and ‘satisfaction’ indicates acknowledgements, apologies
and the like. Critically, reparations do not have to be solely or mainly about
money (Junk and Miner 2004). There are a range of alternatives.
Some argue that any processes to deal with Africa’s ills ought to reflect distrib-
utive, rather than restorative, justice. Some believe that there ought to be wealth
redistribution and that claims should not be dealt with on the basis of rights. It has
also been argued that the ‘West’ has a duty to assist Africa for historical reasons,
but that Africans do not have rights to such claims (Howard-Hassmann and Lom-
bardo 2008). These assertions ignore the direct effects that historical events con-
tinue to have on the people who live in these places. While specific and directly
quantifiable financial reparations are difficult to assess against the backdrop of
what has occurred since the end of colonialism, colonialism must bear at least
part of the blame for the situation that many African groups, countries, and in fact,
Africa as a whole, are in today.
There are many types of reparations and many ways for reparations to be pro-
vided. While individual payouts are one option, community benefits may be more
appropriate, especially for events that occurred many years ago. Increased educa-
tional funding may be the most appropriate option in certain cases. A number of
other processes should be on the table. The healing of the wounds of the past must
include the healing of the psyche; thus, reconciliation processes are important
(see Daly and Sarkin 2007). Truth and fact-finding efforts could help the healing
begin (see Sarkin 1999). Also important is the analysis and documentation of the
colonial ravages and their continuing effects (Roper and Barria 2009). But such
analyses should also consider and examine the extent to which ‘post-independ-
ence governments’ human rights abuses have contributed to the continuing social
and economic marginalization of their populations, because external governments
should be held responsible only for deprivation due to their own conduct’ (Human
Rights Watch 2001).
There are other types of reparations that should also occur. These could include
the building of museums and monuments, as well as, more generally, develop-
ment that benefits communities. Underdevelopment has significantly impacted
the quality of the infrastructure in many parts of the continent. Thus, assistance
in this area should be forthcoming. Community development facilities, especially
those that encourage victim participation, are also important. Proper apologies are
also necessary.
The payment of reparations is not only a legal issue. It is relevant for many
other disciplines. As far as these issues are concerned there is growing acceptance
that colonial abuses may have belated legal implications and that some of the
98 Jeremy Sarkin

colonizers’ actions do not merely retrospectively qualify as violations. There is

a growing acceptance that what occurred were already violations of international
and domestic law at the time they were committed. It is this point which needs
greater research. While some argue that reparations have not been something
which individuals could claim until recently and that it is only in the last twenty
years or so that there was international law on reparations, particularly for indi-
viduals, reparations were in fact a longstanding norm of customary international
law for many years. There are a number of treaties and instruments that provide
special international tribunals or procedures for individual rights or obligations
arising under these instruments.

Why reparations ought to be paid

Colonialism hit Africa hard (see Sarkin 2007). Beyond the atrocities committed
against Africa’s inhabitants, colonialists also extracted and decimated the conti-
nent’s rich natural resources. The removal of such resources represents just one
aspect of the reparations that Africa deserves. Certainly, at the minimum this
plundering qualifies as unjust enrichment. The typical argument is that unjust
enrichment has occurred when one party benefits unjustifiably in the absence of a
contract. If a contract existed, there would be no need to apply principles of unjus-
tified enrichment, as the contract would be the basis of the claim. It is clear that
the colonial powers took what they were not entitled to. They were, in the ordinary
meaning of the term, ‘unjustly enriched’. As a result, African countries and Afri-
can people, at least to some degree, were deprived of those assets, and continue
to suffer the consequences of not having had the benefit of those resources, both
human and otherwise. This legacy is still relevant today.
The ‘Martens Clause’, contained in the 1899 and 1907 Hague Conventions,
plays a significant role in the applicable legal framework because it extended
the protections of international law to groups and individuals. Accordingly,
there is considerable recognition today that a number of historical occurrences
are actionable.
The Martens Clause (Cassese 2000) appeared in the preamble to the 1899 and
1907 Hague Conventions. It states:

Until a more complete code of the laws of war is issued, the High Con-
tracting Parties think it right to declare that in cases not included in the
Regulations adopted by them, populations and belligerents remain under
the protection and empire of the principles of international law, as they
result from the usages established between civilized nations, from the laws
of humanity and the requirements of the public conscience.9

The Martens Clause has been frequently reiterated by states in treaties, cited
by international and national courts, and invoked by organizations and individu-
als (Sarkin 2009). This is important because this disposition is a vital link in
 African victims during colonial times 99

determining whether at least by the early twentieth century a customary norm

existed that prohibited a state from committing gross human rights violations.
The use of the terms contained in this clause may, however, have even earlier
vintages. Regardless of when the principles became international law, the Mar-
tens Clause and customary international law represented a climate of recogni-
tion that states were no longer free to treat people in any manner they chose,
but that they were subject to basic humanitarian principles. These principles
were applicable to the laws of armed conflict, but also to the international legal
regime as a whole. They were integral to forming customary international law
that recognized humanitarian principles. Among these principles was a pro-
hibition against acts that constituted crimes against humanity. This has been
confirmed by the International Criminal Tribunal for the Former Yugoslavia
(ICTY), in a Tadi ruling in 1995 (ICTY 1995). Thus, the principles of the laws
of humanity and the dictates of public conscience have developed over centuries
and spanned many societies. They were not inventions of the Martens Clause.
They were pre-existing principles of national and international legal regimes.
Each usage and agreement reinforced the values and strengthened the norms and
rules of preceding usages and agreements.
What is specifically important about the Martens Clause is that it serves either
as an interpretative guideline, a general instruction on how to interpret interna-
tional customary or treaty rules, or else it serves to codify two new sources of
international law: the ‘laws of humanity’ and the ‘dictates of public conscience’
(Sarkin 2009). Thus, attempts to seek reparations for past gross human rights
violations that occurred more than a century ago can rely on this Clause as evi-
dence of a customary norm prohibiting the commission of those mass atrocities
at the time.
Crimes against humanity and genocide already constituted crimes at the time
although they were not known by those names (Anderson 2005). While the word
‘genocide’ entered usage in the 1940s, the concept of this crime dates back thou-
sands of years and was certainly an internationally accepted violation by the turn
of the twentieth century. The legal principles from which these crimes emerged
existed in international law, were acknowledged by the international community
and were called upon periodically by 1900. This does not mean that the law only
applies retrospectively (although it can) but that these laws were applicable at the
time. It is true that some who support historical reparations argue that some legal
rules ensure that retrospective liability is a possibility as well. Excluding repara-
tions in other forms beyond symbolic from this duty disregards the reality of what
occurred, and the legacy of those events today. This duty has corresponding rights.
As has been noted: ‘Not seeking financial restitution … amounts to an injustice
that cannot be ignored’ (Shelton 2004).
Some suggest that the potential legal problems attendant to making claims for
generations-old human rights abuses can be avoided if the focus is instead shifted
to the contemporary effects of past abuses and to seeking out practical solutions
to directly improve the quality of life of the people.
100 Jeremy Sarkin

Various other treaties provide evidence that international law recognized and
protected indigenous Africans during the late nineteenth century. One such treaty
was the 1878 Treaty of Berlin, which provided rights for indigenous peoples. The
Treaty has been hailed as the ‘most important international body concerned with
minority rights prior to 1919’ (MacArtney 1968, p. 166). It was particularly impor-
tant from a human rights standpoint, as it permitted states to intervene in cases of
non-compliance (Claude 1955, pp. 8–9). The acceptance of minority rights at this
time also coincided with the evolving notion of sovereignty, which, while histori-
cally vested in the ruler, was shifting towards the people (Preece 1997, pp. 75–95).
Thus, the conceptualization of and belief in the notions of protection that interna-
tional law provided to groups and individuals at this time were on the rise.

Conclusion
Some reparations, regardless of what type they constitute, ought to be given by the
states that were responsible for what occurred (Sarkin 2004a). The enduring legacy of
what occurred during those times should not be underestimated. The lasting effects of
population decimation, land dispossession, as well as other effects continue to haunt
many groups. It impedes their economic, social and political progress.
Former colonizing powers and others must acknowledge, by providing repara-
tions, the untold pain and misery that they caused (Shelton 2004). However, I
believe that reparations should not be paid directly to individuals, unless there
is a clear connection between the harm caused and a specific victim or his or her
direct family. Group or collective reparations are a better alternative in these types
of situations. They need not involve specific payouts to individuals but rather can
be offered in the form of debt relief or other similar offerings, such as projects
that benefit the community as a whole. Finally, that reparations or development
assistance occurs is far more important than the name that is used to describe the
process. Using the term “reparations” might, however, help to reduce the anger
that exists towards the ‘West’.10 As recent events have shown, reconciliation in
some form is sorely needed.

Notes
1 See further Abdullahi (1997).
2 See further Bossuyt and Vandeginste (2001, p. 343).
3 On responsibilities of states see Dimitrijevic (2011).
4 This has been extensively debated. See an early treatise Rodney (1972).
5 www.un.org/en/ga/president/66/statements/slavetrade260312.shtml.
6 See further du Plessis (2003), Posner and Vermeule (2003, p. 689).
7 See generally Langbehn and Salama (2011) and Honig (1954).
8 See however (Adejor, n.d.).
9 Hague Convention II with Respect to the Laws of Armed Conict on Land (1899);
Hague Convention IV Respecting the Laws of Armed Conict on Land (1907).
10 See generally Gloppen (2001).
 African victims during colonial times 101

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Chapter 6

State compensation for victims

of violent crime
David Miers1

Introduction
Almost all western liberal democracies make financial provision for the compen-
sation of victims of violent crime. Largely the product of initiatives taken dur-
ing the 1960s and 1970s, such arrangements now exist in Australia, Canada, the
United States of America, and throughout the European Union.2 Those initiatives
were particular to their jurisdictions but they display some common originating
features, and, as will be discussed below, common defining features. Many derived
from their governments’ desire to respond to an increasingly vocal victims’ lobby
that repeatedly drew attention to the perceived secondary victimization that vic-
tims suffered at the hands of criminal justice systems whose objectives and val-
ues were focused upon offenders. This critical response to the liberal ideology
that informed criminal justice policy during the 1960s and 1970s politicized the
experience of personal victimization as a means of questioning that policy’s integ-
rity and credibility. The perceived discrepancies between the state’s treatment of
offenders and of victims was, and continues to be, a powerful and persistent strand
in the politics of criminal justice reform, a rhetoric which demands that it be ‘rebal-
anced’ in favour of the victim. This demand does not inevitably constitute a zero-
sum game, though many of its most vocal supporters have also sought to curtail
offenders’ rights while arguing for an increase in victims’ entitlements, for exam-
ple, to be routinely informed about the investigation of the offence or to be heard
at the trial via a victim impact statement. Many jurisdictions do now incorporate
these and other rights for victims, though their scope and implementation remain
controversial or incomplete. The allocation of public funds to compensate victims
of crime thus constitutes one of the principal means by which governments can
demonstrate their commitment to the amelioration of the victim’s experience of
crime and of contact with the criminal justice system. Of more recent significance
are the responses of national and international agencies to provide or recommend
the provision of compensation for the victims of terrorist violence.
This chapter falls into four sections. The first provides a broad overview of the
existing provision of victim compensation within the European Union and the
United States of America for criminal injuries sustained within the victim’s home
106 David Miers

state and, more specifically, for injuries sustained as a result of an act of terrorism
at home or abroad. The second section comments on the justifications underlying
the introduction of crime victim compensation schemes while the third analyses
the similarities and differences between a sample of national schemes in terms
of their scope, eligibility rules and compensation function. This section draws
particular attention to shifts in the compensation function of schemes in Australia,
Canada and Great Britain, before the concluding section comments on the notion
of a victim’s ‘right’ to compensation. It will be recognized that in a short chapter it
is not possible to do full justice to the many schemes now in operation in common
and civil law countries, nor to the subtleties of the extensive literature concerning
victims’ rights. Also in the interests of space, and of narrative flow, I do not, when
remarking on particular states’ schemes, fully reference their legislative or other
legal provisions. I have instead provided a list of these texts in an Annex to the
chapter. Nor, unless indicated, are the schemes I identify intended to be exhaustive
of any general point, but are for illustrative purposes only.

Overview

The European Union

Supranational European attention to crime victim compensation first took sub-
stantial shape in the Convention on the Compensation of Victims of Violent Crime
(Council of Europe 1983a). Article 3 required the ratifying parties to compen-
sate other member states’ nationals who were injured in their territories; but the
Convention achieved little (Greer 1996). Following the European Union Council
conclusion in Tampere in 1999, which called for minimum standards on crime
victims’ access to justice and their legal protection in criminal proceedings,3 the
European Commission published a consultation paper on compensation arrange-
ments within the member states (Commission of the European Communities
2001). Taking into consideration the findings of Mikaelsson and Wergens’ (2001)
comprehensive study, this consultation addressed the possible objectives of victim
compensation in the European Union. The result was Council Directive 2004/80/
EC relating to compensation to crime victims (European Union 2004).
In an echo of the Council of Europe’s Convention, the 2004 Directive required
member states to create a ‘compensation mechanism’ for cross-border compensa-
tion; that is, to enable nationals criminally injured in one member state to obtain
compensation from that state by arrangements established in the member state in
which they normally resided. By article 1:

Member States shall ensure that where a violent intentional crime has been
committed in a Member State other than the Member State where the appli-
cant for compensation is habitually resident, the applicant shall have the right
to submit the application to an authority or any other body in the latter Mem-
ber State.
 State compensation for victims of violent crime 107

The Directive provided that ‘access to compensation in cross-border situations’

would operate on the basis of member states’ existing schemes for the compensa-
tion of victims of violent crime. Where they had not established them, article 12
required member states to ensure that ‘their national rules provide for the existence
of a scheme on compensation to victims of violent intentional crimes committed
in their respective territories, which guarantees fair and appropriate compensation
to victims’. It will be seen that the Directive did not directly require every member
state to establish, if they did not already exist, arrangements to compensate their
own nationals; but this was its inevitable result.
The Directive set a compliance date of 1 July 2005, by which time mem-
ber states should have set up their ‘compensation mechanism’ for cross-border
applications,4 and by implication their compensation schemes. Noting that most
member states had already established such schemes (some in fulfilment of their
obligations under the 1983 Convention), many would in this respect already be
compliant at the date of the Directive; by contrast, the obligation would pose con-
siderable difficulties for the ten accession states that had become members of the
European Union on 1 May 2004. For them, crime victim compensation was only
one issue within a much broader agenda concerning their criminal justice systems’
compliance with European Union standards.5 In compliance with its own obliga-
tion under article 19, the European Commission reported in early 2009 on the
Directive’s application. It noted that all member states except Greece had trans-
posed the Directive and that there was a substantial degree of compliance with the
requirements of article 12 (European Commission 2009, para.3.4.2). Given that
the research was conducted only 12–18 months after the compliance date,6 the
Report’s ‘main conclusion’ on the effectiveness of the cross-border compensation
arrangements is hardly surprising: ‘there have been very few cases to date’ (Euro-
pean Commission 2009, para.3.3). The total of cases dealt with by both assisting
and deciding authorities was 335, of which nearly a third had been handled by
the British Criminal Injuries Compensation Authority. By way of comparison,
that Authority receives some 60,000 applications a year arising from offences of
violence in Great Britain (CICA 2012).
In 2010, under the Stockholm Programme and its Action Plan, the Commis-
sion presented a package of proposals to reinforce existing national measures
aimed at ensuring that victims of crime are given non-discriminatory maximum
rights across the EU, irrespective of their nationality or country of residence
(European Commission 2011). In addition to the 2012 Directive replacing the
2001 Framework Decision, this ‘roadmap’ included a second review of the 2004
Directive (European Union 2011). The Preparatory study for an impact assess-
ment on future EU measures relating to compensation to crime victims was
commissioned in 2011 and reported in 2013 (GHK 2013). Its purpose is to iden-
tify (a) ways in which the implementation of the compensation Directive could
be improved; (b) minimum standards for what constitutes ‘fair and appropriate’
compensation; and (c) legislative and non-legislative instruments appropriate
for establishing such standards.7
108 David Miers

Whatever the shortcomings of these cross-border arrangements there is one

clear consequence of the 2004 Directive: all of the twenty-seven member states
now operate schemes that compensate their residents who are victims of violent
crime committed in their territory. By comparison, in December 2005, six months
after its compliance date, of the then twenty-five member states only thirteen,
consisting entirely of existing members,8 had established such schemes. How-
ever, merely to count the number of schemes currently operating in Europe says
nothing of their scope or operation. There continue to be important differences of
detail between them in respect of such matters as the range of victimizing events,
compensable persons and injuries, heads of damage and their financial limits. The
fundamental point is that whatever these differences, each scheme constitutes an
answer to the same set of basic questions for the design of any scheme: what vic-
tims are to be compensated to what level of compensation for what injuries aris-
ing from what crimes, and under what conditions can their eligibility be lawfully
limited or denied? I return to these questions in section 4.

The United States of America

California created the first compensation programme in 1965 (on this and other
early schemes see Edelhertz and Geis 1974). Over the next two decades most of
the other states followed suit, establishing the eligibility and payment criteria
that for the most part remain standard. Reporting in 1982, the President’s Task
Force on Victims of Crime noted that thirty-six states and the District of Colum-
bia administered such schemes and, noting also that they were all vulnerable to
budgetary pressures, recommended that ‘Congress should enact legislation to
provide federal funding’ to assist them (United States 1982, p. 37). Enacted in
1984, the Victims of Crime Act (VOCA) sought to ensure that states had suffi-
cient funding, but only where they were themselves willing to bear the primary
financial burden; from 1986 to 2003 VOCA supplemental funding provided
about a quarter of the funding for the states’ schemes; now about a third. Admin-
istered by the Office for Victims of Crime (OVC) within the US Department of
Justice, the Crime Victims Fund supports a range of victim services,9 and as we
shall see, imposes a number of obligations on states as conditions of its con-
tribution to their schemes. In an interesting precursor to the European Union’s
cross-border arrangements, VOCA required every funded state to cover violent
crime within its borders regardless of the state in which the victim was normally
resident, and where the home state managed a VOCA funded scheme it was
required to compensate the victim if the state in which the injury was sustained
had no scheme. The federal government’s role in the development of compen-
sation schemes in the United States was therefore principally to commend and
to recognize the arrangements introduced by these state-based initiatives, and
to provide a small but significant amount of supplemental funding. This was at
the time seen as a kind of quid pro quo for the states to cover federal crimes so
that the federal government did not have to make its own arrangements. VOCA
 State compensation for victims of violent crime 109

intervention was no doubt welcome to the existing schemes, but it was not until
1992 that the remaining dozen states joined the club.
In marked contrast to the position in the member states of the European Union,10
the revenue base for the states’ schemes is not ‘tax dollars’ but the fees and fines
that their criminal justice systems impose on offenders, supplemented by the
grants made by the Crime Victims Fund, itself financed by fines and penalties
paid by convicted federal offenders.11 A combined total of US$920,872,902 was
paid from federal and state revenues during the two fiscal years 2009 and 2010 by
way of compensation to victims, of which about a third (US$380,006,000) com-
prised contributions made under the Fund (Office for Victims of Crime 2011, p.
8). Each state administers its own scheme, but to be funded under VOCA it must
meet certain minimum standards; schemes must, for example, reimburse the costs
of the victim’s medical treatment and mental health counselling, and in the cases
of homicide, funeral and burial costs. Because of these conditions many of the
fifty-three schemes have very similar eligibility requirements and offer compara-
ble benefits. This convergence is accentuated by their collective membership of
the National Association of Crime Victim Compensation Boards.12 While empha-
sizing the importance of checking the exact eligibility requirements of the state
scheme in question, its nationally available leaflet, Compensation for Crime Vic-
tims, comments that although each is slightly different, it is able to provide some
general information about all of them. This would not be so easily accomplished
in the case of the national schemes within the European Union.13

Compensation for violent acts of terrorism

Where they are sustained within the territory of a state that operates a crime victim
compensation scheme, the injuries that are caused by an act of violence that might
for legal reasons be treated as an act of terrorism14 may simply fall to be compen-
sated under its terms. This was so in the case of the bombings on the London Under-
ground on 7 July 2005 (Miers 2006). While the Criminal Injuries Compensation
Authority sought to pre-empt the inevitable pressure to resolve 7 July claims quickly
by announcing that it would fast-track them and by issuing a Guide giving advice
about the application procedure, the levels of compensation available to the injured
victims or where they were killed, to their dependants, were the same as would
apply to any crime of violence. By contrast, other countries with a history of terrorist
violence may enact specific arrangements to compensate their victims, though their
initial and current scope may well diverge. In Northern Ireland, where sectarian
violence prompted the enactment in the mid-1950s of a sequence of compensation
schemes limited to riotous behaviour, the most recent extend to injuries caused by
any criminal act of violence.15 In Spain the history of violence committed by ETA
led to legislation initially in the 1980s and later in 1999,16 though unlike Northern
Ireland this jurisdiction is separate from the general system of public assistance
to the victims of violent crime and sexual offences. Israel has similarly devised
comprehensive legislative responses to two of the primary issues arising in the
110 David Miers

context of compensation for harm caused by terrorism. The Victims of Hostile

Action (Pensions) Law 1970 provides compensation for bodily injuries suffered in
terrorist attacks, as well as compensation to family members of deceased victims
of terrorism, while the Property Tax and Compensation Fund Law 1961 provides
compensation for property damage caused by hostile (terrorist) acts. As Sommer
(2003, p. 335) notes in a comprehensive review: ‘the original legislative scheme
was limited to compensation for harm caused by war. When terrorism emerged as
a permanent feature of the Middle East conflict, compensation was extended to
civilian victims of terrorism.’17 While there remains no state scheme for compensat-
ing victims who survive violent (non-terrorist) or personal crime (Yanay and Gal
2010), in 2009 the Israeli government introduced limited arrangements under which
the dependants of a homicide victim may receive a small lump sum to cover their
immediate expenses. These arrangements have not been enacted into law, and nor
do they imply any rights for the dependants, but they do mark a change in the state’s
recognition and treatment of indirect victims (Yanay 2004).18
Following the 1995 Oklahoma City bombing in the United States, in 1996 Con-
gress gave the OVC authority to use the VOCA emergency reserve fund to supple-
ment existing grants to state crime victim compensation to cover victims of terror-
ism and mass violence. Some of the victims of 9/11 were compensated under their
state schemes but, as is typical of them, the New York scheme makes no provision
for ‘non-economic loss’ and imposes limits on economic loss; the compensation
payable in respect of those killed or injured that day would therefore have been a
small fraction of what could have been recovered in a civil action. The relevance
of this comparison is that the airlines might have been liable for any negligence
on their part in not sufficiently vetting those of their passengers who were instru-
mental in causing the injuries and loss of life had it not been for federal Public
Law 107-42 Title IV: ‘The purpose of this title is to provide compensation to any
individual (or relatives of a deceased individual) who was physically injured or
killed as a result of the terrorist-related aircraft crashes of September 11 2001.’19
The literature analysing the genesis and implementation of the ‘September 11th
Victim Compensation Fund of 2001’ is far too substantial even to be summarized
here.20 Concluding his comprehensive review of this unique response to those
events Shapo (2005, p. 262) notes, ‘in our rage, we wanted to do something – at
least something for someone if we could not then do something against some-
one’. Apart from the individualized determination of the survivors’ losses, the
non-economic losses of those who died were presumed to be US$250,000, plus
US$100,000 for the spouse and each dependant: no state scheme approaches these
figures in cases of homicide.21
By definition none of the arrangements described above can apply where the state’s
citizens are injured by terrorist acts committed abroad, such as the Australian and Brit-
ish tourists who were injured in the Bali nightclub bombing in October 2002. Excep-
tionally, the South Australian crime victim compensation scheme is not so limited,
but for all other Australian residents the federal government has in the past provided
ex gratia payments to victims of terrorist attacks.22 Following debates over a number
 State compensation for victims of violent crime 111

of years, legislation enacted in 2012 provides statutory compensation for Australian

victims of overseas terrorism events, to a maximum payment of AUS$75,000. The
Act covers primary victims, that is victims who were in the place where a declared
overseas terrorist act occurred and were harmed as a direct result of that act, and sec-
ondary victims, defined as a primary victim’s close family members. The British gov-
ernment has maintained the ex gratia scheme it introduced after the Bali bombings to
cover victims having an ‘ongoing disability’ arising from any other violent terrorist
act occurring after that date (Ministry of Justice 2012a), the last event being the attack
on the Taj Mahal Palace in Mumbai in November 2008. In future British visitors sus-
taining injuries in a ‘designated’ terrorist incident abroad will be compensable under
new arrangements which will be based on the domestic scheme current at the time
(Ministry of Justice 2012b).
As the United Nations’ review observed, ‘cross-border issues relating to acts of
terrorist violence abroad may add a layer of complexity to the measures required
to protect victims’ access to justice and/or compensation’ (United Nations 2011,
para.10). Besides such matters as establishing to the home state’s satisfaction the
extent of the victim’s injuries, not the least of these difficulties is the validation
of the act as one of ‘terrorism’, a label that neither the home state nor the affected
state might be willing to acknowledge. It is for this reason that the United States’
arrangements, which reimburse expenses related directly to recovery from the ter-
rorism event to a limit of US$150,000, require, in common with those in Australia
and Great Britain, the government so to designate the act. While there is no specific
compensation scheme for Canadian victims of acts of terrorism, whether commit-
ted in Canada or abroad, the federal Victims Fund provides financial assistance to
Canadians victimized abroad, though this is largely limited to the reimbursement
of travel expenses to return to Canada.23 Whether directed to injuries sustained in
acts of terrorist violence at home or abroad, it is clear that national compensation
schemes vary substantially in scope and levels of payment. In its international review,
The Criminal Justice Response to Support Victims of Acts of Terrorism, the United
Nations Office on Drugs and Crime commented (United Nations 2011, para.296):

based on the principle of equality, victims of acts of terrorism are not ontolog-
ically more deserving of compensation than victims of other crimes in pro-
portion to the harm suffered. However, it must be recognized that the reality
of certain criminal acts causing large-scale victimization requires a differenti-
ated approach. Through relevant national procedures, financial compensation
may be sought from the offender or other available sources, including, where
applicable, national funds of compensation to victims.

Justifying state compensation for victims of crime

When national victim compensation schemes were introduced throughout com-
mon law jurisdictions in the 1960s and 1970s their promoters were at pains to
justify this novel allocation of public funds to meet the gap between the victim’s
112 David Miers

theoretical civil remedy against the offender and the unreality of its enforcement:
‘in an ideal world, it should be the offender who compensates the victim’ (Home
Office 2005, p. 14). The President’s Task Force on Victims of Crime commented
(United States 1982, p. 39):

the philosophical basis for these programs varies from a legal tort theory,
whereby the state is seen to have failed to protect its citizens adequately, to
a humanitarian rationale through which all citizens should receive assistance
for their compelling needs, to a by-products theory that recognizes victim sat-
isfaction as a benefit to the criminal justice system. In reality, most programs
represent a mixture of these rationales.

See discussion in Miers (2007), and Elias (1983) for a critical contemporary
account of the justifications that were offered by the schemes’ promoters. Later,
the European Commission’s Green Paper argued that in the absence of known
offenders with means or of private insurance, victims of personal violence could
be considered ‘as being in a worse situation than other groups who suffer injury or
losses of various kind, for example, due to illness, accidents, or unemployment’.24
The function of state compensation schemes can be considered, it concluded, ‘as
providing a safety net for victims’ (Commission of the European Communities
2001, para.4.1). Although the state has always rejected the notion that it is vicari-
ously liable for the acts of offenders, the simple and repeated justification for the
introduction, for example, of the British scheme in 1964, that ‘it is right to do so’,
continues to underpin the present arrangements. ‘Compensation is given to vic-
tims of violent crime in recognition of a sense of public sympathy for the pain and
suffering of the victim’ (Ministry of Justice 2012c, para.149). Sympathy (identify-
ing with another’s loss) is reflected in the ethical value, empathy (understanding
of another’s loss), which also strongly underpinned the Council of Europe’s 1983
thinking, that compensation was a matter of social solidarity (Council of Europe
1983a, Preamble; Buck 2005, pp. 150–154). This is also evident in its Guidelines
for the protection of victims of terrorism: ‘Recalling the necessity for states, nota-
bly for reasons of equity and social solidarity, to ensure that victims of terrorist
acts can obtain compensation’ (Council of Europe 2005, Preamble, (g)).
Underlying these ethical assertions is an argument from social justice that
draws on elements of the doctrinal arguments summarized by the President’s
Task Force. This is that we can construe the assumption of a responsibility to
compensate crime victims to be a concomitant of the notion of ‘civic trust’:
‘Justice depends on the public having trust in the system’ (Ministry of Justice
2012c, para.22). To experience violent crime is to experience a failure in a con-
dition of social justice which citizens are encouraged to hold, that the state can
reliably meet their reasonable expectations for the prevention and prosecution
of crime (de Greiff 2006, pp. 461–464; Matravers 2010). This failure requires
not only the mobilization of the criminal justice system against offenders, and
their denunciation, but also monetary recognition of that experience. Although
 State compensation for victims of violent crime 113

not explicit, state compensation may also recognize that, unlike those that are
accidentally or even negligently caused, the crime victim’s injuries are, paradig-
matically in the case of intentional conduct, personal: the offender’s intention
was, typically, to hurt this victim. This also differentiates them from the victims
of property crime precisely because the offender’s ill will is in those cases (pri-
marily) directed against an inanimate object. It is this feature of personal ani-
mus that makes the offender’s behaviour morally objectionable and that justifies
treating the offence as a public wrong and as the occasion for public censure.
It is, additionally, the individuation of the offence as reflected in the pain and
suffering of being a victim of violent crime, and not just of a serious injury, that
arguably characterizes the state’s unique response to these particular injuries.25
A rather different justification underlies the European Union’s 2004 Directive
requiring member states to establish a ‘compensation mechanism’ to deal with
cross-border applications. Stemming from the decision of the Court of Justice in
Cowan v Le Tresor Public,26 the objective is to remove obstacles to the free move-
ment of persons and services. Tourists (such as Cowan), employees of companies
located across the Community and other ‘natural persons’ should be protected
from harm in the member state that they are visiting on the same basis as anyone
else residing there. The Court held that ‘Measures to facilitate compensation to
victims of crimes should form part of the realization of this objective’ (Euro-
pean Union 2004, Preamble, para.2). Whatever their justification, their legal base
will reflect the particular state’s juridical characteristics, as the United Nations
commented in its review of victim compensation schemes. ‘The observation of
national legislation and practice on the treatment of victims in the criminal jus-
tice system is obviously not an abstract exercise and must respect the specifici-
ties of national systems. The choice of predominantly adversarial or inquisitorial
procedural models, for example, may determine the form of victim participation
and, more generally, the role of victims in the criminal trial. Equally, the scope of
application of the right to compensation varies considerably, taking into account
the relationship with insurance law’ (United Nations 2011, para.52). In the follow-
ing section I aim to address the variations in the provision of compensation.

Defining characteristics of national crime

victim compensation schemes
It is clearly impossible in a single chapter to review the details of all of the schemes
that have been touched on so far, let alone the many others now operating across
the common and civil law worlds. But it is possible to remark on the three defin-
ing characteristics of any scheme and to illustrate important similarities and dif-
ferences between particular schemes’ understanding of those characteristics. They
are: the scope of ‘a criminal injury’, their approach to undeserving victims, and the
injuries and losses that they cover. These similarities and differences in turn reflect
each state’s conception of its scheme’s compensation function. Broadly speaking
this has been located at a point along a continuum between a welfare function and
114 David Miers

the provision of a (taxpayer funded) surrogate for the victim’s theoretical civil
remedy against the offender. More recently some states have questioned the value
of compensation payments akin to those available in civil proceedings, preferring
to redirect public funds to the immediate amelioration of the victim’s losses. This
questioning has become sharper as states seek to cut their expenditure in the inter-
ests of sovereign debt deficit reduction.

The scope of ‘a criminal injury’

National victim compensation schemes universally apply to victims of violent
crime; in the United States in 2010/11 the majority ‘were victims of assault, homi-
cide, and child abuse (including sexual and physical abuse)’ (Office for Victims
of Crime 2011, p. 8). By article 1 the European Directive applies to ‘violent inten-
tional crime’ and as the Commission noted in its report, all respondent member
states confirmed that their schemes covered this category of victims (Commis-
sion of the European Communities 2009, pp. 8–9).27 Opinions differ on the value
of specifying what constitutes a ‘violent crime’. Many schemes, including those
in Australia, the European Union and the United States, do no more than give
examples of crimes that they typically cover. The British scheme, for example,
simply provides that a crime of violence is a crime which involves ‘a physi-
cal attack’, which in limited circumstances may include ‘an animal attack’, or
‘a threat against a person, causing fear of immediate violence in circumstances
which would cause a person of reasonable firmness to be put in such fear’. In the
United States ‘violent crime’ expressly extends to federal crime and to injuries on
tribal lands or military premises. Open phrases can result in uncertain application;
which can be remedied, at the risk of over- or under-inclusion, by reference, as in
British Columbia and Ontario, to ‘prescribed offences’ in the Canadian Criminal
Code. In addition to those who might be regarded as the primary victim of a crime
of violence, a majority of the European Union’s member states’ schemes extend
to injuries sustained by secondary victims; that is, persons who themselves suf-
fer (typically mental) injury on seeing a (closely) related direct victim sustain a
criminal injury. This is not to be confused with claims by persons who are respon-
sible for the welfare and claim on behalf of the primary victim, or who in the
case of a homicide are the victim’s dependants (or survivors). Where secondary
victims sustain criminal injuries they are, of themselves, eligible victims under
these schemes.
In addition to offences of personal violence some schemes specifically
include the injuries a person sustains when engaging in an act of law enforce-
ment, whether they are good citizens going to the aid of the police or criminal
justice employees whose actions go above and beyond the call of duty. Often
these injuries will in any event be the result of a crime of violence, but as a cor-
ollary of the notion of civic trust such victims too may be singled out as deserv-
ing of financial recognition; their inclusion in some common law schemes being
a legacy of their initial establishment.28 Beyond the paradigm case of violence
 State compensation for victims of violent crime 115

between strangers, a sensitive point of difference between national schemes has

been their approach to domestic violence. Within the European Union such pro-
vision has traditionally been subsumed within the general definition of violent
crime (Bochmann and Griesham 1999). But in response to concerns about fraud
and the possibility of the award ending up in the offender’s hands, claims arising
from domestic violence are often subject to additional eligibility requirements;
for example, that the offender be prosecuted or convicted,29 requirements also
to be found in the Australian states’ schemes (Barrett-Mayering 2010). These
considerations largely describe the former position in the United States, but
in enacting VOCA Congress insisted that to qualify for federal funding a state
scheme was obliged to include victims of domestic violence; in 2010–11 around
30% per cent of all assault-related claims were of this origin. The OVC has a
similar concern about benefitting the offender, but schemes must not deny these
claimants solely because they share a residence with the offender or because
they are members of the same family; though they may if the payment would
substantially ‘unjustly enrich’ an offender. The United States’ schemes are also
distinctive in their coverage of injuries caused by drunk driving; this too is an
OVC requirement, as not all schemes in the 1980s covered this offence. Where
the offender is insured the schemes are not engaged; in contrast road traffic
injuries in other common law countries and in the European Union are included
only where the vehicle was itself being used as a weapon.
For reasons touched on earlier, national victim compensation schemes do not
extend to victims of property crime. A robbery victim may be compensated for
the mental trauma of being threatened with a firearm, a fortiori if the weapon is
used against him/her, but not for the stolen property. Nor is a victim of burglary
or criminal damage to her house compensable for the trauma caused by those
crimes against property, though in many United States’ schemes he/she may be
eligible for a single ‘crime-scene clean up’ payment; for example, California
(US$1,000), Texas (US$750) and New Jersey (US$4,000). The federal rules
do not prohibit compensation for property offences but they do prohibit the use
of federal funds to pay for them (Office for Victims of Crime 2001); very few
states will compensate them from their own funds. But in common with schemes
in Australia, Canada and the European Union, federal funds can be used, in the
words of the British scheme, to pay for ‘property or equipment, which was relied
on by the applicant as a physical aid and which was lost or damaged as a result
of the incident giving rise to the injury’. The loss of or damage to such items as
spectacles and medical and dental prostheses may indeed not be thought of at
all as crimes against ‘property’, but, given their purpose, as offences against the
person who relies upon them. Interestingly, VOCA funding in the United States
also requires schemes to cover costs relating to physical injury or death that
might be involved in crimes involving damage to religious property, especially
when racially motivated; but this does not extend to the property damage itself.
The Final Guidelines emphasize that priority under VOCA continues to be cov-
erage for victims of violent crime (Office for Victims of Crime 2001).
116 David Miers

Eligibility: innocent, blameless victims

One of the fundamental policy questions to be answered in the creation of any
crime victim compensation scheme is how it deals with victims who, by virtue
of their personal characteristics or conduct resemble, or have been, offenders.
This is a conceptual problem because the differentiation between ‘offenders’ and
‘victims’ is confounded by the complexities inherent in individual and societal
responses to suffering. Persons who suffer harm or injury are not ‘victims’ in and
of themselves, but as a result of complex social and forensic interactions which
label them so (Miers 2000). It is also factually problematic because the reality
of criminal victimization is that many victims have also been offenders and that
in particular incidents it may be a matter of chance as to which of two protago-
nists the criminal justice process subsequently labels the ‘victim’. Both of these
problems challenge what has often been the political motivation underpinning
these schemes: to compensate ‘innocent’, ‘blameless’ or, as Nils Christie (1986)
famously coined them, ‘ideal’ victims. These are stereotypically children, the eld-
erly and the law abiding, whose lives are disrupted by stereotypically predatory,
young, male offenders. These stereotypes are just that, but they play a powerful
role in populist demands for ‘justice’ for victims of crime, a role that is accentu-
ated where the scheme is funded by the taxpayer.
Almost without exception, criminal injury compensation schemes will either
exclude altogether or reduce any compensation that might be payable to victims
who in some way contributed to the incident in which their injuries were sustained.
The NACVCB’s brochure, which relates to all of the United States’ schemes,
provides that the victim must ‘not have committed a criminal act or some sub-
stantially wrongful act that caused or contributed to the crime’.30 Article 7 of the
European Commission’s minimum standards for national compensation schemes
provides that ‘member states may reduce or refuse compensation on grounds of
the behaviour of the applicant in direct relation to the event that caused the injury
or death’; and the review of the 2004 Directive found that with two exceptions
(Latvia and Slovakia), all member states did so provide (Matrix Insight 2008a, p.
43). Similarly, all of the schemes in the Australian states and territories require
that ‘the victim’s conduct before and at the time of the offence did not contribute
to their injury’ (Barrett-Mayering 2010, p. 8), while the substance of the Ontario
legislation, ‘in determining whether to make an order for compensation and the
amount thereof, the Board shall have regard to all relevant circumstances, includ-
ing any behaviour of the victim that may have directly or indirectly contributed to
his or her injury or death’ is typical of the Canadian schemes.
Much more contentious is the question whether ‘a life of crime’ should also
result in the refusal or reduction of a claim where the injury is wholly uncon-
nected with that life. Here the European Commission’s minimum standards are
silent, although it is clear from its language that article 7 is not to be read as
extending to cases of this sort, but is to be confined to the notion of contributory
negligence, a basic principle of tort law that depends on causation. By contrast
 State compensation for victims of violent crime 117

paragraph 3 of article 8 of the Council of Europe’s Convention provides that

‘compensation may also be reduced or refused if an award or a full award would
be contrary to a sense of justice or to public policy (ordre public)’ (Council of
Europe 1983a). The 2008 analysis of twenty-four member states’ schemes found
that only six answered the question ‘does your scheme provide that a claimant
who has a criminal record may be refused compensation or receive a reduced
amount?’ in the affirmative (Matrix Insight 2008a, p. 44). This minority view
is seen also in the United States, where of the fifty-three current schemes, six
provide for mandatory and three for discretionary exclusion of victims with
criminal records.31 A review of schemes in Australia and Canada suggests that,
like the majority, claim rejection or reduction in an award is limited to cases in
which the victim contributed to or was committing an offence at the time of the
incident causing the injury.32
Good citizens also co-operate with the police, the prosecuting authorities and
their state’s compensation authority, so all schemes provide that failure to meet
these eligibility requirements may result in claim rejection or reduction. But they
also recognize that in the circumstances of the particular crime, notably sexual
assault, or of the particular victim, notably children, it may be inappropriate to insist
on strict adherence, for example, to reporting requirements. Almost all of the United
States’ schemes specify a reporting period, typically within seventy-two hours of
the incident. By contrast, schemes in Australia, Canada and some member states of
the European Union prefer the narrative requirement, ‘within a reasonable time’,
‘as soon as reasonably practicable’, or ‘without delay’; but whether time-specific
or narrative, schemes can provide, in the words of the revised scheme introduced
in Great Britain in 2012, that ‘particular account will be taken of: (a) the age and
capacity of the applicant at the date of the incident; and (b) whether the effect of the
incident on the applicant was such that it could not reasonably have been reported
earlier’. Insistence on the victim’s compliance with these reporting requirements is
necessary primarily because no scheme requires the offender to have been convicted
of an offence arising from the violent incident; indeed, it will often be the case that
the offender is unidentified. What schemes will require is credible, that is, on the
balance of probabilities, independent evidence of the incident and the injury, perhaps
via a witness, and certainly by reference to police and medical records. Thereafter
they will also expect the victim to co-operate in the police or prosecuting authorities’
investigation, on pain of claim rejection or reduction in any award. The subsequent
application for compensation is also subject to a limitation period, typically one to
three years after the incident; but here too, as in the case of late-discovered child
sexual abuse, a scheme may waive this requirement or, as in the Australian states,
run the limitation period from the victim’s eighteenth birthday.

Compensable losses and injuries

Broadly speaking, victim compensation schemes distinguish actual losses arising
from the injury from payments for the injury itself, a distinction that reflects what
118 David Miers

in common law jurisdictions constitute respectively special and general damages,

and in civil law, material and immaterial losses. All schemes compensate those
victims who survive the crime of violence and, in cases of homicide, their depend-
ants; but there is wide variation between them in respect of the particular losses
and injuries that will be compensated, their methods of assessment and of the level
of awards.
Under the category of ‘losses’, the vast majority of schemes reimburse reason-
able medical expenses where free public health provision does not already cover
them. In the United States this and the costs of mental health counselling for crime
victims are conditions of federal funding (Office for Victims of Crime 2001),
which, with dental treatment constitute more than 50% per cent of all payments
(Office for Victims of Crime 2011, p. 8). Similarly, all of the Australian states and
territories cover medical and counselling expenses (Barrett-Mayering 2010, p.
4), as do a majority of the Canadian provinces.33 Unlike the Council of Europe,
which stated that ‘compensation shall cover’ medical and hospitalization expenses
(Council of Europe 1983a, para.4), the European Union’s 2004 Directive does not
specify what is to be included as ‘material’ losses. It does this for the same under-
lying reason that informs its entire approach to the assessment of compensation: to
respect and reflect national laws. But article 12(2) does require national schemes
to provide ‘fair and appropriate compensation’, which the European Commis-
sion’s research confirmed did in most cases cover medical expenses (Commission
of the European Communities 2009, p. 9; Matrix Insight 2008a, p. 48). Because
of the availability of free health care, the British scheme does not compensate
medical expenses unless the injuries are long-term or disabling, when, in com-
mon with a number of schemes in Australia, Canada and other European Union
member states, awards may be made to cover, for example, adaptations to the
victim’s home, the provision of additional care, or rehabilitation (Matrix Insight
2008a, p. 49). In the United States awards for such ‘special expenses’ are not a
condition of federal funding, but awards for building modification and equipment
to accommodate physical disabilities resulting from a compensable crime may be
made from VOCA funds.
The second principal loss the victim may experience is loss of earnings and
earning capacity. Here VOCA funding mandates payments for lost wages, as do all
Australian states and territories (Barrett-Mayering 2010, p. 4). Of the twenty-five
member states that responded to the European Commission’s research project,
twenty-two covered loss of earnings, and of these eighteen provided additional
compensation for future loss; four did not compensate for either loss (Matrix
Insight 2008a, p. 49). There is also a mixed picture in Canada, reflecting the
differing approaches its provinces have adopted: British Columbia and Ontario
cover both loss of earnings and earning capacity; New Brunswick and Nova Sco-
tia do not. A fundamental policy question that arises in connection with awards
for these losses is whether schemes should fund victims who were, prior to the
injury, high earners. The Council of Europe’s Explanatory Report on the 1983
Convention noted that compensation for the losses and injuries stipulated by a
 State compensation for victims of violent crime 119

national scheme in compliance with article 4 were ‘to be calculated by the State
paying the compensation according to the scales normally applied for social secu-
rity or private insurance or according to normal practice under civil law’ (Council
of Europe 1983b, para.28). But recognizing that where a scheme is funded by
the taxpayer it may be thought objectionable that high earners should be com-
pensated at public expense, article 7 provides: ‘Compensation may be reduced
or refused on account of the applicant’s financial situation.’ As the Explanatory
Report comments, ‘since compensation of the victim from public funds is an act
of social solidarity, it may be unnecessary [to compensate lost earnings] where
the victim or his dependants are plainly comfortably off’ (Council of Europe
1983b, para.32). One of the ways in which limits may be set is, as has always
been the case in the British scheme,34 to cap the rate at which loss of earnings is
calculated. But the most common is to cap the amount that is payable. This can,
in turn, be achieved either by imposing a maximum on any award for the loss of
(future) earnings, and/or by imposing a maximum on the total award, including
any other compensated losses or injuries. About one half of European Union
member states specifically limit loss of earnings awards, but almost all impose
an upper limit on the total payable award (Matrix Insight 2008a, pp. 50–51). In
the United States all schemes impose a limit on the total award that may be made,
and nearly every state has limits below the maximum on some specific expenses,
including lost wages;35 a similar picture exists in the Australian schemes,36 while
those Canadian schemes that cover loss of earnings rely on an overall maximum,
with the exception of Ontario which also imposes a specific limit.
Where the criminal injury is fatal, it appears that all schemes reimburse funeral
expenses; in the United States this is a condition of federal funding. But provi-
sion for what is likely to be the dependants’ principal financial loss, the loss of
dependency on or support from the victim’s income, is not universal, and where
it is covered there are considerable differences in the levels of payment. Within
the European Union fifteen of the twenty-three member states that responded to
the review of the 2004 Directive compensate for loss of dependency, and as noted
above they all impose limits on payments either for this loss or for all compensa-
ble losses. The Australian schemes that cover loss of dependency similarly impose
financial or other limits,37 as do some Canadian schemes;38 while in an echo of the
British scheme Manitoba and Quebec apply a cap on the rate at which the victim’s
loss of earnings is to be assessed.39 VOCA funding requires payments for loss
of support; here too there are many variations, though they are all subject to the
state’s own overall upper limit.40
Whether it provides compensation for the injury itself has historically
depended on the state’s conception of the place that its scheme should occupy
along the continuum between a welfare function and the provision of a (tax-
payer funded) surrogate for the victim’s theoretical civil remedy against the
offender. The paradigm of the civil remedy surrogate has been the British
scheme which, until 1995, compensated surviving victims’ pain and suffering
largely according to the principles applicable at common law. In part because
120 David Miers

it was now considered inappropriate that public funds should compensate on

the same basis as judicial decisions fixing financial responsibility on insured
defendants, and in part for reasons of financial exigency, a new, statutory
scheme was introduced in 1996. This provides for payment to be made on the
basis of a tariff of awards that groups together injuries of comparable severity to
which a financial value is attached; the minimum level is £1,000 and the maxi-
mum for a single injury, even after the major restructuring in 2012, remains
£250,000 (Miers 2013). When they were first introduced, the Canadian com-
mon law schemes also resembled the surrogate model (Burns 1992); subject in
each case to a financial limit; this remains the case in Alberta (CAN$110,000),
Ontario (CAN$25,000), Prince Edward Island (CAN$15,000) and New Bruns-
wick (CAN$1,000), the schemes in British Columbia and Saskatchewan now
being confined to special damages.41 All of the Australian jurisdictions pro-
vide awards for elements of non-financial loss, though the range of compen-
sable injuries varies. In its table of compensable injuries to which standard
amounts of compensation are prescribed (minimum AUS$2,400, maximum
AUS$50,000), the New South Wales scheme resembles the British tariff
model. A variant is a connotative definition of the compensable injuries, as
those that involve ‘extremely severe injury’ (Australian Capital Territory) or
have a ‘significant adverse effect’ on the victim (Queensland, Victoria), again
with corresponding tariff values subject to financial limits of AUS$50,000 and
AUS$10,000 respectively for the most severe or significant injuries (Barrett-
Mayering 2010, pp. 6–7). Finally, some Australian states simply provide that
limited awards may be made for pain and suffering.42
Within the civil law tradition ‘immaterial loss’ contemplates injuries to a per-
son’s body, health, liberty or other personal rights for which financial redress
may be sought. This may be undertaken either via civil proceedings against the
offender or by means of the claimant’s formal status as a party to the criminal
proceedings against the offender, at the conclusion of which, if convicted, the
offender may be ordered to pay compensation. As noted, the 2004 Directive
requires national schemes to provide ‘fair and appropriate’ compensation, but
does not define its content. As the European Commission’s research found, all
but two of its respondents considered that their schemes did meet this require-
ment, although there was inevitably a wide range of understanding among
them. A number indicated that payments for ‘immaterial loss’ were made in
accordance with a tariff based on such criteria as days lost through sickness or
a hierarchy of injury categories, at levels reflecting social security legislation
for equivalent injuries, or that provided the same levels of compensation for all
claimants, though it was not clear whether this meant all claimants for criminal
injury compensation or claimants for all other kinds of injury, such as medical
negligence or road traffic injuries (Matrix Insight 2008a, pp. 44–47). In any
event, as noted earlier, the vast majority of schemes impose a maximum amount
of compensation that can be paid to an individual claimant.
 State compensation for victims of violent crime 121

The compensation function

As the preceding paragraphs indicate, a state’s conception of the compensation
function its criminal injury scheme is to perform is reflected in its focus and in the
financial limits that it imposes. It is also the case that, in part for reasons of finan-
cial exigency, states have come to reconsider where that focus should lie.
In stark contrast with the position in the European Union and in other common
law countries, only two of the United States’ schemes compensate for pain and
suffering, a defining element of the civil remedy against the offender, and only
then to a very limited extent: Hawaii (maximum of US$2,000), and Tennessee,
for sexual offences only, with a maximum of US$3,000.43 There is no mention
of compensation for general damages in the VOCA funding arrangements, nor,
in the case of fatal criminal injuries, is there any compensation for bereavement
in favour of the victim’s close family or dependants. This is typically a fixed
sum, commonly found in the European Union’s schemes (Matrix Insight 2008a,
p. 50),44 but interestingly, only in some of those other common law jurisdictions
that adopted the civil remedy model.45 In the case of the United States these omis-
sions reflect the fact that having no universal state or federal social insurance
provision, its victim compensation schemes focused on the actual, the ‘hard’ costs
of crime (medical and dental bills, etc.). The original state-level schemes thus per-
formed a welfare function (Edelhertz and Geis 1974), which in turn became the
federal conception of victim compensation under VOCA. Some make provision
for replacement services for work that the victim is unable to perform because of
the injury (primarily child-care and housekeeping) and for rehabilitation, which
may include physical therapy and/or job therapy, but these are essentially welfare
functions performed in the absence of free public access to such services. Whether
‘Obamacare’ will prompt any reconsideration of state schemes’ compensation
function remains to be seen.
By 1983 all of the Australian states and territories had enacted schemes that,
while imposing upper limits, provided compensation for special, and elements of
general, damages. But like Great Britain, the financial pressures occasioned by
both the level of awards and the schemes’ administrative costs drove a number to
introduce tariffs or to make substantial reductions in their scope and compensation
levels.46 These retrenchments were accompanied by greater emphasis on recovery
from the offender (Freckelton 2001),47 while many of the present arrangements
were stated in the context of new and more comprehensive legislative provision
for victim services. In Canada, too, fiscal considerations prompted changes that
were also the product of a change in policy. This was that there were more effec-
tive responses to the here-and-now of victimization than delayed compensation.
Compensation schemes that seek to stand in for the offender, even where there are
upper limits on awards that would be inapplicable in a civil action, inevitably suf-
fer from many of its disadvantages. Delay (encouraging compensation neurosis),
complexity in the calculation of awards and the generation of unrealistic expecta-
tions about their amount are long-standing issues. Such schemes also perpetuate
122 David Miers

a more profound philosophy: that postponed awards (however hard the scheme’s
administrators seek to decide claims quickly) are an appropriate response to per-
sonal victimization. In 1996 Victoria and in 2002 British Columbia shifted the
focus of their schemes from financial compensation to benefits targeted to vic-
tims’ immediate needs, such as crime scene clean-up and vouchers for travel to
work or psychiatric counselling, the Nova Scotia scheme being limited entirely to
such counselling.
Perhaps the most radical recent change has been the revisions to the British
scheme made in 2012. In an earlier consultation the Home Office had proposed
that victims of ‘non-serious’ crimes would no longer be the recipients of state
compensation, but would instead be eligible for a ‘menu’ of services to be deliv-
ered by Victim Care Units. This menu would comprise two elements, the first
being the provision of emotional support, to include counselling; the second
addressing more immediate needs, such as hardship payments, vouchers for taxis
to work where the injury left the victim unable to drive, personal alarms and tar-
get hardening the victim’s house following a burglary (Home Office 2005, pp.
27–28; Miers 2006). Published shortly after the London terrorist bombings in
July 2005, there was no further action, but the urgency of national deficit reduc-
tion has since then prompted radical surgery. The 2012 scheme has eliminated
the lowest and revalued downwards a middle range of tariff bands, excluding
perhaps half of the number of hitherto successful claimants, focusing instead on
those victims sustaining serious and disabling injuries. It has also reset the rate
at which loss of earnings and dependency will be calculated to statutory sick
pay, thus bringing crime victims in line with any other victim of any other disa-
bling injury. As the scheme retains some elements of a civil remedy (notably an
award for bereavement in fatal cases) and retains the same tariff values for the
most serious injuries, this new model may be conceived as a form of enhanced
social welfare (Miers 2013).48
Whether the state conceives that its scheme should do no more than perform
a welfare function or should contemplate a broader notion of social justice that
adopts some elements of what the victim could receive in a civil action for dam-
ages, all schemes require the deduction of any publicly funded benefits to which
the victim, or in fatal cases, the dependants, are entitled. It is axiomatic that any
compensation that the victim or the dependants recover from the offender, for
example by means of a court order on conviction, must be deducted; and it may
be that the benefits that they receive under private insurance may also fall to
be deducted in full. In the European Union all but one member state answered
affirmatively the question whether their scheme ‘made deductions to the value of
compensation paid due to other payments received by the claimant to compensate
them’ (Matrix Insight 2008a, p. 54). While they display important differences in
their scope, all of the Canadian schemes require any provincial or federal col-
lateral benefits to be taken into account, as do those in Australia. In the United
States the ‘payer of last resort’ injunction is explicit – the Office for Crime Vic-
tims (2001) states that:
 State compensation for victims of violent crime 123

When a victim is eligible to receive benefits from a federal program such

as Veterans’ benefits, Medicare, and Social Security Disability or federally
financed state or local program, such as Medicaid the state compensation
program shall not use VOCA funds to pay costs that another federal or feder-
ally financed program covers.

The differences between a welfare and a civil remedy (or elements thereof) func-
tion are seen also in the financial limits on awards, although for all states there will
inevitably be budgetary limitations. Taken as a whole, the United States’ schemes,
which are constrained by both state and federal funding,49 cover the same major
types of loss (but not the injury itself) as do the civil remedy models. But the
maximum benefits are generally very low even by comparison with the 2012 revi-
sions to the British scheme, which range from £1,000 (US$1,600) for the least to
£250,000 (US$400,000) for the most serious, single injury, with a maximum of
£500,000 (US$800,000) for the total award.50 The majority of awards in the United
States have a US$25,000 limit, in a range between US$10,000 and US$50,000; a
few states have higher maxima for ‘catastrophic’ injuries, though these too show
considerable variation.51 Its schemes thus present a very different financial picture
to that in Great Britain, clearly revealed by their respective expenditure figures.
As noted earlier, in the two fiscal years 2009 and 2010 the total of payments made
by all schemes in the United States was, in broad terms, US$921 million to some
329,000 claimants (average US$2,800; Office for Victims of Crime 2011, p. 8).
In the same period, the British scheme made payments of around £490 million
(US$784 million) to some 61,330 claimants (average £8,000; CICA 2010, 2011).
A very crude comparison shows that if the number of awards in the United States
bore the same ratio to its population as its population does to that of Great Britain
(5:1), the annual total would be closer to 825,000 claimants, at an annual cost of
US$2,301 million (£1,386 million). I have not attempted here to draw any com-
parisons with the position across the European Union. The picture in terms of the
numbers of victims of recorded crimes of violence and resulting claims, together
with the intricacies of member states’ national compensation schemes, makes such
an exercise exceedingly difficult and too complex for this chapter.52

A right to compensation
To say that victims have a ‘right’ to a named (beneficial) provision is to say
that they have an enforceable expectation that where their circumstances fall
within the factual scope of a rule having legal force an agent of the state will in
turn have the authority and the obligation to apply the rule’s provision to them.
It is plainly the case in civil and common law that victims have a right to be
compensated by those who cause them personal injury, and that the courts (or
other judicial bodies) have both the authority and the obligation to enforce that
right where the offender’s liability is determined according to law. And it is
worth remarking that here, unlike the case of imposing a fine upon conviction,
124 David Miers

the civil court has no duty to consider the impact of the order for damages
on the offender, who may, in consequence, be bankrupted. What then should be
the role of the state where the offender is unknown or impecunious? As we saw
earlier, though many states have enacted criminal injury schemes funded by the
taxpayer or by financial penalties or surcharges imposed on convicted offend-
ers, none has accepted that this provision follows from a legal duty upon the
state to arrange for the compensation of crime victims from public funds. Where
the question has been raised, states have emphatically rejected any notion that
they are (vicariously) responsible in law for the offender’s behaviour, whether
because, for example, of reductions in police resources or the failure of their
criminal justice systems to reduce reoffending.
The introduction to this chapter suggested that one interpretation of a state’s
motivation behind the introduction of a victim compensation scheme was to
respond to popular criticism of liberal criminal or penal justice policies; and this
arguably remains the case (Spalek 2006, ch.2; and see the policy background to
the changes to the British scheme, Miers 2013). In its review of its member states’
provision of compensation for acts of terrorism, the United Nations commented
(United Nations 2011, p. 53):

It should be noted that many legal systems have statutory provisions concern-
ing the rights of victims. This is the case, for example, in Canada and the
United States, where there is also a civil society movement endeavouring to
obtain constitutional rights for victims. In adversarial models, in particular,
where the equality of arms between prosecution and the defence is of central
significance, victim participation is limited in order to secure respect for the
rights of the accused, which are often of constitutional rank, in conformity
with international standards.

Some commentators are indeed wary of efforts to ‘equalize’ procedural rights

for victims at the expense of defendants’ long-established criminal justice rights
(Ashworth 2000; and see discussion in Hall 2009, ch.2). But the allocation of
public funds to the compensation of crime victims hardly threatens any inequali-
ties between them; indeed, as many commentators (and especially the cynics)
have observed, the enactment of such schemes may help to neutralize opposition
to liberal policies (Goodey 2005, ch.5; Kirchengast 2006, ch.9). This is a process
that in earlier writing I have characterized as the politicization of deserving or
innocent victims (Miers 2000).
Whereas the earliest common law schemes were enacted alongside other
legislative efforts to address criminal justice concerns, some of the revisions
introduced in Australia and a majority of those now in force in Canada were
explicitly made in the context of the wider provision of victim services. Their
incorporation into this provision can also be construed as a further concomitant
of the notion of ‘civic trust’: that the state’s failure reliably to meet citizens’
 State compensation for victims of violent crime 125

reasonable expectations for the prevention of crime requires not just monetary
recognition but active steps to assist them to deal with its consequences. In
terms of popular demands that offenders should be required to make reparation
for their offences, for example by strengthening the sentencing court’s power to
order the offender to pay compensation to the victim, this provision has even
greater potency where its funding is drawn in whole or part from victim sur-
charges or more general financial penalties imposed on offenders. As we have
seen, these penalties constitute the tax base for VOCA funding of the United
States’ schemes, as is also the case with the Canadian provincial schemes.53
In 2012 the British government increased the scope and levels of the victim’s
surcharge levied against convicted offenders, but there is no equivalent in the
2012 Directive.54
We may therefore say that where they fall within the terms of an enacted
scheme, victims have a ‘right’ to be compensated as a matter of the posi-
tive law. The central question then is, compensation for what? Debates about
victims’ rights largely centre on three matters: the scope of the factual
circumstances set out in the relevant rule, the scope of the benefit to which
the eligible victim is entitled and the consequences of the agent’s failure to
apply the rule according to law (see generally Doak 2007; Hall 2009, 2010).
For example, in the instance of decisions taken by public prosecutors as to the
charge to be preferred against an offender, there will be debate about the nature
and timing of any information to be given to the victim (or possibly to the
victim’s family), the opportunity, if any, and scope of any consultation about
the charge, and so on. Similar issues arise in the case of victim impact state-
ments: when and in what circumstances are such statements permitted and
what cognizance must the court give to them? And as consumers of these and
other services (Rock 2004, ch.4), what remedies do victims enjoy where the
prosecutor, court or other criminal justice agency fail to meet their obliga-
tions? As we have seen, in the case of criminal injury compensation these
debates centre on the questions who is to be regarded as an eligible victim of
what kinds of criminal injuries, for what range of economic and non-economic
losses, and to what level will eligible victims be compensated? Underpinning
the answers, which should include some appeal or review mechanism should
the agency fail to apply the scheme to eligible claims, these schemes are
publicly funded, hypothecated from criminal fines and penalties or directly
from general taxation. Accordingly (a) their scope is to be informed by broader
considerations generated by public and governmental ambitions for the crimi-
nal justice system, and (b) they are subject to the same process for determin-
ing its value for money as is any other publicly funded social policy. These
considerations may severely limit how these substantive questions are to be
answered. A victim may well have a legally enforceable right to benefit from
compensation, but in some cases it will be a right to very little.
126 David Miers

Annex: legislative instruments

Australia
Federal
Social Security Amendment (Supporting Australian Victims of Terrorism Over-
seas) Act 2012 (22 July 2012, No. 106.
www.comlaw.gov.au/Details/C2012A00106

State
NEW SOUTH WALES

Victims Support and Rehabilitation Act 1996

www.austlii.edu.au/au/legis/nsw/consol_act/vsara1996372/

SOUTH AUSTRALIA

Victims of Crime Act 2001

www.legislation.sa.gov.au/LZ/C/A/Victims%20of%20Crime%20Act%202001.aspx

TASMANIA

Victims of Crime Assistance Act 1976

www.austlii.edu.au/au/legis/tas/consol_act/vocaa1976271/

VICTORIA

Victims of Crime Assistance Act 1996 No. 81 of 1996

www.austlii.edu.au/au/legis/vic/consol_act/vocaa1996271/

WESTERN AUSTRALIA

Criminal Injuries Compensation Act 2003

www.austlii.edu.au/au/legis/wa/consol_act/cica2003321/

Canada
Federal
Justice for Victims of Terrorism Act S.C. 2012, c. 1, s. 2
http://laws-lois.justice.gc.ca/eng/acts/J-2.5/page-1.html
On Canada generally see Department of Justice Canada
www.justice.gc.ca/eng/pi/pcvi-cpcv/prov.html
 State compensation for victims of violent crime 127

Provincial
ALBERTA

Victims of Crime Act of 1997 Revised Statutes of Alberta 2000 Chapter V-3
www.qp.alberta.ca/documents/Acts/v03.pdf

BRITISH COLUMBIA

British Columbia (Criminal Injury Compensation Act [RSBC 1996] Chapter 85)
superseded by the Crime Victim Assistance Act [SBC 2001] ch 38
www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_01038_01
Crime Victim Assistance Act, Crime Victim Assistance (General) Regulation
www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/10_161_2002

MANITOBA

The Victims’ Bill of Rights, CCSM c V55

www.canlii.org/en/mb/laws/stat/ccsm-c-v55/latest/ccsm-c-v55.html
The Victims’ Bill of Rights Amendment Act (Denying Compensation to Offend-
ers and Other Amendments) S.M.2010, c. 45
http://web2.gov.mb.ca/laws/statutes/2010/c04510e.php

NEW BRUNSWICK

Victims Services Act, SNB 1987, c V-2.1

www.canlii.org/en/nb/laws/stat/snb-1987-c-v-2.1/latest/snb-1987-c-v-2.1.html

NOVA SCOTIA

Victims’ Rights and Services Act Chapter 14 of the Acts of 1989

http://nslegislature.ca/legc/statutes/victims.htm

ONTARIO

Compensation for Victims of Crime Act R.S.O. 1990, ch C.24

www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c24_e.htm

PRINCE EDWARD ISLAND

Chapter V-3.1 Victims of Crime Act 1989

www.gov.pe.ca/law/statutes/pdf/v-03_1.pdf

QUEBEC

Crime Victim Compensation Act 1971, c. 18

www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.
php?type=2&file=/I_6/I6_A.htm
128 David Miers

An Act to promote good citizenship 1977, chapter C-20

www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.
php?type=2&file=/C_20/C20_A.html
Worker’s Compensation Act 1985
www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.
php?type=2&file=/A_3/A3_A.html

SASKATCHEWAN

Criminal Injuries Compensation Act RSS 1978 c C47; superseded by the The
Victims of Crime Act 1995
www.qp.gov.sk.ca/documents/English/Statutes/Statutes/V6-011.pdf

European Union
Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime
victims

Member States
SPAIN

Victims of Terrorism Solidarity Act 1999, No. 32/1999 of October 8 1999,

amended in 2000 and 2003, and Royal Decree No. 288/2003 of March 7 2003

UNITED KINGDOM

Victims of Overseas Terrorism Compensation Scheme (Crime and Security Act

2010, sections 47–54)

GREAT BRITAIN

The Criminal Injuries Compensation Scheme 2012

www.justice.gov.uk/downloads/victims-and-witnesses/cic-a/am-i-eligible/crimi-
nal-injuries-comp-scheme-2012.pdf

NORTHERN IRELAND

Criminal Injuries to Persons (Compensation) (N.I.) Act 1968; repealed and

replaced by the Northern Ireland Criminal Injuries Compensation Scheme 2012.
The Criminal Damage (Compensation) (Northern Ireland) Order 1977 No. 1247
(N.I. 14)
 State compensation for victims of violent crime 129

United States of America

Federal
Air Transport Safety and System Stabilisation Act 2001, SEC. 403
International Terrorism Victim Expense Reimbursement Program

State
ARKANSAS

The Arkansas Crime Victims Reparations Program

www.ag.arkansas.gov/crime_safety_crime_victims_reparations.html

CALIFORNIA

California Victim Compensation and Government Claims Board

www.vcgcb.ca.gov/

FLORIDA

Florida Division of Victim Services and Criminal Justice Programs

myfloridalegal.com/victims

LOUISIANA

Louisiana Crime Victims Reparations Board

www.lcle.state.la.us/programs/cvr.asp

MISSISSIPPI

Mississippi Crime Victim Compensation Division

www.ago.state.ms.us/index.php/sections/victims/victim_compensation

MISSOURI

Missouri Crime Victims’ Compensation Program

www.dps.mo.gov/dir/programs/cvc/

NEW JERSEY

Victims of Crime Compensation Office

www.nj.gov/oag/njvictims/index.html

NORTH CAROLINA

North Carolina Crime Victims Compensation Division

https://www.nccrimecontrol.org/index2.cfm?a=000003,002144,000016
130 David Miers

OHIO

Ohio Office of the Attorney General Crime Victim Services

www.ohioattorneygeneral.gov/Victim

RHODE ISLAND

Rhode Island Crime Victim Compensation Program

www.treasury.ri.gov/divisions/crimevictim/

TEXAS

Texas Crime Victims Compensation Program, Victim Services Division

https://www.oag.state.tx.us/victims/about_comp.shtml

WASHINGTON

Washington State Crime Victim Compensation Program

www.lni.wa.gov/claimsins/crimevictims/default.asp

Notes
1 I am grateful to Dan Eddy of the National Association of Crime Victim Compensation
Boards for his helpful advice on the position in the United States of America; any errors
are mine.
2 In its Directory of International Crime Victim Compensation Programs 2005 the US
Department of Justice’s Ofce for Crime Victims identied thirty-six countries as having
compensation programmes (Ofce for Victims of Crime 2005). These were principally
to be found in North America and Europe. There were none in South America (except
Colombia) or the Caribbean (except Trinidad and Tobago); none in Africa; none in the
Near East (except Israel); and a small number in East Asia and the Pacic (Australia,
Hong Kong, Japan, New Zealand, Philippines, Republic of Korea and Taiwan).
3 Article 9 of the European Council’s Framework Decision of 15 March 2001 on the
standing of victims in criminal proceedings provided for ‘a right to compensation in the
course of criminal proceedings’, though it was not explicit about the type of compen-
sation (nancial and/or otherwise) which offenders should be encouraged to provide,
save that it should be ‘adequate’ (European Union 2001). The Framework Decision was
replaced in 2012 by a Directive establishing minimum standards on the rights, support
and protection of victims of crime (European Commission 2012). Of relevance here
are Articles 4.4(e), which includes the right of victims to receive information on ‘how
and under what conditions they can access compensation’ (which could include state
compensation), and 16, which outlines the right of victims to receive compensation
from the offender in the course of criminal proceedings; though this does no more than
is stated in Article 9 of the 2001 Framework Decision.
4 This required the establishment of arrangements by which victims could apply through
their own national compensation scheme (‘the Assisting Authority’), which was then
obliged to transmit that application to the scheme in the country in which the crime
took place (the ‘Deciding Authority’), which was in turn obliged to determine the
application and communicate the outcome to the Assisting Authority, nally contacting
the applicant.
 State compensation for victims of violent crime 131

5 This drive to convergence in the provision of Europe-wide crime victim compensation

can also be seen in the development of restorative justice (Miers and Willemsens 2004;
Miers and Aertsen 2012); and see article 12 of the 2012 Directive.
6 The research was conducted by Matrix Insight, which submitted its two reports (Empir-
ical and Synthesis) in December 2008 (Matrix Insight 2008a, 2008b).
7 The contractor is GHK in partnership with Milieu Ltd and von Freyhold Vial & Partner
Consultants (GHK 2013).
8 Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Neth-
erlands, Portugal, Spain, Sweden, and the United Kingdom (which comprises two
schemes: one for Great Britain and one for Northern Ireland).
9 These include victim assistance and victim/witness assistance programmes, which in
turn include advice on restitution orders and on victims’ right to make oral and writ-
ten victim impact statements at an offender’s sentencing. The allocation of funds as
between these and the state compensation programmes is determined by a spending
formula; see Ofce for Victims of Crime, www.ojp.usdoj.gov/ovc/pubs/crimevictims-
fundfs/intro.html#vc
10 France is an exception. Under a private sector service levy system, le Fonds de Garantie
des victimes d’actes de Terrorisme et d’autres Infractions (FGTI), manages a Criminal
Injuries Compensation scheme to assist victims of terrorism and other offences. This
fund (FGTI) raises revenue from a levy on property insurance of 3.3 euros (£2.87) per
insurance contract (in 2004). FGTI pays compensation which has been set according
to requirements/criteria set by the Compensation Commission for Victims of Offences
(CIVI) which is part of each county court.
11 ‘As of August 2010, the Fund balance had reached over four billion dollars and includes
deposits from federal criminal nes, forfeited bail bonds, penalties, and special assess-
ments collected by US Attorneys’ Ofces, federal US courts, and the Federal Bureau of
Prisons. Federal revenues deposited into the Fund also come from gifts, donations, and
bequests by private parties, as provided by an amendment to VOCA through the USA
PATRIOT Act in 2001 that went into effect in 2002. In the period 2002–2010, over
US$300 thousand dollars were deposited into the Fund through this provision’; see
Ofce for Victims of Crime www.ojp.usdoj.gov/ovc/about/victimsfund.html.
12 www.nacvcb.org/ The NACVCB’s purpose is ‘to provide leadership, professional
development, and collaborative opportunities to our members to strengthen their
capacity to improve services to crime victims and survivors’. It organizes training and
other events to support the states’ boards’ ofcials, and publishes an informative Crime
Victim Compensation Quarterly. Its Program Directory helpfully summarizes the key
features of all of the United States’ schemes to a common template.
13 The European Judicial Atlas on Civil Matters aims to catalogue national schemes, but
for a number of member states the relevant information is not available; http://ec.europa.
eu/justice_home/judicialatlascivil/html/cv_information_en.htm?countrySession=2&.
14 Law enforcement and judicial procedures typically confer more extensive powers of
search and seizure, and of arrest and detention of suspects, than those that routinely
apply to crime of violence. See generally Letschert and Ammerlaan (2010).
15 For much of the twentieth century, compensation in Northern Ireland was payable via
a civil court procedure to the victims of collective violence, the awards levied on the
police authority. This was a legacy of arrangements from the previous century whose
purpose was to place the responsibility for the nancial consequences of unlawful
assemblies and riots, to both persons and property, on the community within which the
offenders were assumed to live. These arrangements were replaced in 1968 by a statu-
tory version of the Scheme then operating in Great Britain and was applicable to any
victim of violent crime; see now the Northern Ireland Criminal Injuries Compensation
Scheme 2012, managed by the Northern Ireland Compensation Agency; www.dojni.
132 David Miers

gov.uk/compensation-agency. This Agency also administers the 1977 Northern Ireland

legislation providing compensation for property damage caused by acts of terrorism
(‘riot and unlawful assembly’). In England and Wales the Riot (Damages) Act 1886
xed nancial responsibility on the police for damage caused by riot in their author-
ity’s area. Still good law, claims in the region of £100 million arising from the riots in
England in August 2011 are, in difcult economic times, unwelcome. See Koch (2004)
for an overview of the role of tort law and of insurance in compensating property dam-
age caused by terrorism.
16 The legislation provides that the state will fund the medical treatment of those suffer-
ing physical or psychological injury as a result of a terrorist attack or, in case of death,
nancial aid to the closest relatives of the person. When it sentenced the surviving ter-
rorists responsible for the March 2004 Madrid train bombings, the court ordered them
to pay their victims E900,000 each, but recognized at once that the payment would in
practice be made under the 1999 Act.
17 See generally United Nations (2011), para.68: ‘For the purpose of compensation, a
number of States have followed a model for victims of acts of terrorism along the lines
of existing models of compensation for military and civilian victims of war. This may
be regarded as a consequence of the more general duty of States to protect individuals
on their territories, as well as a recognition of the value of the involuntary sacrice of
victims on behalf of the State, which is the most frequent target of terrorist acts.’
18 The lump sum is 5,000 New Israeli Shekels (£850); later, and if the need arises, they
may qualify for extra NIS 30.000 (£5,000) to reimburse death-related expenses. I am
grateful to Dr Uri Yanay for drawing my attention to this development.
19 There is, however, substantial doubt as to whether the survivors would have been able
to establish liability as a matter of law (Diller 2004; Sebok 2004).
20 See Holt (2003–04); Alexander (2004); Goldscheid (2004); Issachoroff and Manseld
(2006). See also Grey (2005–06) for an instructive comparison between this Fund and
the schemes in Israel and Great Britain then in force.
21 The Fund paid out more than US$7 billion dollars to surviving victims and families of
those who died, with payments to families averaging over US$2 million.
22 These payments have covered medical and evacuation support, consular assistance and
assistance with funeral costs and other expenses.
23 The victim of a terrorist act committed in Canada may be eligible for compensation
from an existing provincial or territorial programme if it is determined that the act
is a crime committed within that province or territory and the victim meets that pro-
gramme’s other eligibility criteria. An interesting development is the 2012 federal
legislation by which ‘any person that has suffered loss or damage in or outside Canada
on or after January 1 1985 as a result of an act or omission that is, or had it been com-
mitted in Canada would be, punishable under Part II.1 of the Criminal Code, may, in
any court of competent jurisdiction, bring an action to recover an amount equal to the
loss or damage proved to have been suffered by the person’.
24 Being readily insurable, victim compensation schemes normally exclude criminal dam-
age to or the theft of property. In addition, the extent of such losses and the indirect
costs of checking for fraudulent claims are insurmountable objections to their inclu-
sion; but compare the position concerning property loss caused by acts of terrorism;
see text above.
25 This is explicit in the particular cases of sexual offences and homicide compensated
under the British scheme. Here, the Home Ofce argued, the public nds sexual
offences ‘especially repugnant’ and the circumstances of homicide ‘particularly hor-
ric and the trauma to the victim’s family […] severe’. A nancial award ‘is society’s
way of acknowledging the harm that has been done to the victim as a representative of
 State compensation for victims of violent crime 133

the community’ (Home Ofce 2005, pp. 14, 21). While making substantial cuts in the
levels of compensation, the 2012 Scheme maintains the established levels for physical
and sexual abuse of children and adults (see Miers 2013).
26 (1989) ECR 195.
27 The notable exception is Italy, which covers only victims of organized crime and extor-
tion.
28 In Canada, for example, see schemes in British Columbia, Manitoba, Ontario and Que-
bec.
29 The European Commission’s analysis of the 2004 Directive was not in a position to
capture data on injuries arising from domestic violence (Matrix Insight 2008a, p. 37).
Compare the position under the European Convention on Human Rights (Hasselbacher
2010), and under article 30 of the Council of Europe’s convention on domestic vio-
lence: ‘Adequate State compensation shall be awarded to those who have sustained
serious bodily injury or impairment of health, to the extent that the damage is not
covered by other sources such as the perpetrator, insurance or State-funded health and
social provisions. This does not preclude Parties from claiming redress for compensa-
tion awarded from the perpetrator, as long as due regard is paid to the victim’s safety’
(Council of Europe 2011).
30 www.nacvcb.org/index.asp?bid=14; ‘Crime victim compensation: an Overview. Case
No. 93,701, Greg and Linda Fisher Appellants v Kansas Crime Victims Compensa-
tion Board exemplies the approach taken by the United States’ schemes. The Kansas
Supreme Court, relying heavily on similar rulings in other states that a compensation
programme must nd some causal or contributory connection between the victim’s
behavior and the victimization, rather than rely solely on the victim’s illegal behavior
for denial, held that the Kansas Board had wrongly denied compensation to a 15-year-
old driver whose blood alcohol level exceeded the legal limit when he was killed by a
drunk driver, there being no causal connection between his drunkenness and his vic-
timization.’
31 Arkansas, Mississippi, Missouri, North Carolina, Ohio and Washington (mandatory),
and Florida, Louisiana and Rhode Island (discretionary); the details of the nature of the
criminal record vary.
32 Manitoba has since 1998 provided that compensation payable to a victim of crime may
be denied or reduced if the victim has been involved in prescribed illegal activity in the
ve years preceding the claim.
33 The Criminal Injuries Counselling Program in Nova Scotia is limited to the offer to
pay for professional counselling for victims of violent crimes. The Financial Benets
Program of Alberta does not provide compensation for any costs or losses, which it
expects victims to pursue as a civil action against the offender, but pays a single lump
sum assessed on a point system, where a victim’s injuries are given a certain number of
points based on the severity of their physical and mental injuries.
34 Until the 2012 revision, this was one and one half times average weekly earnings; from
2012 it is now xed at the universal rate for statutory sick pay.
35 These limits vary widely. For individual state details see the NACVCB’s Program
Directory www.nacvcb.org/index.asp?sid=5,
36 New South Wales: AUS$10,000; South Australia: AUS$50,000; Victoria:
AUS$20,000.
37 New South Wales: AUS$50,000; South Australia: AUS$50,000; Victoria: loss during a
period of up to two years after the occurrence of the act of violence.
38 Alberta: CAN$12,500; Ontario: CAN$25,000.
39 Quebec: compensation is at a rate not exceeding 150% of the deceased’s income; Mani-
toba: the rate is 55% to a maximum of CAN$25,000 a year.
134 David Miers

40 Texas: a maximum of US$500 a week; Illinois: US$1,000 a month; California: no

more than ve years’ loss of support; Pennsylvania: US$20,000 but in any event not to
exceed average industrial earnings.
41 Neither Manitoba nor Quebec has provided compensation for general damages.
42 South Australia: AUS$50,000; Tasmania: AUS$50,000; Western Australia:
AUS$75,000.
43 Rhode Island did but abandoned this provision as the benet became too expensive,
creating a ten-year claims backlog.
44 The British scheme pays £11,000 for one ‘qualifying claimant’ or £5,500 each for more
than one.
45 British Columbia: provision for ‘bereavement leave’ from employment; Quebec:
the parents of a minor child who dies as a result of crime are eligible to receive
CAN$2,000; South Australia: a payment not exceeding AUS$10,000 may be made
for ‘grief’; Western Australia: a close relative may be made an award for mental or
nervous shock.
46 In contrast, Western Australia continues to cover both pain and suffering and loss
of enjoyment of life while also increasing in 2003 the maximum award payable to
AUS$75,000 from AUS$50,000.
47 Victoria: excluding pain and suffering the 1996 Act provided that the court may make
an order against the offender for such compensation (in 2000 there was a partial rein-
statement to a limit of AUS$7,500); Tasmania: nancial assistance is available to ena-
ble victims to sue their offenders.
48 None of these changes was, however, as radical a departure from the offender surrogate
model as occurred in New Zealand, which established its scheme in 1963 but replaced
it in 1972 when enacting its omnibus no-fault scheme.
49 ‘In FYs 2009 and 2010, as the number of claims grew and revenue sources were
reduced, state programs continued to face the challenge of nding sufcient funding to
reimburse crime victims for expenses related to their victimization’ (Ofce for Victims
of Crime 2011, p. 8).
50 At the time of writing the pound sterling is worth 1.60 US dollars.
51 Arkansas: US$25,000, from a US$10,000 base gure; New Jersey: US$60,000 and
US$25,000; Texas: US$125,000 and US$50,000.
52 See the tentative analysis in GHK (2013).
53 The Canadian Federal Government funds its Department of Justice’s Victims of
Crime Initiative but has no responsibility for the provincial or territorial compensation
schemes.
54 But see the press release by Viviane Reding Vice-President of the European Com-
mission, EU Justice Commissioner Putting Victims rst – Better protection and
support for victims of crime Conference ‘Victims of Crime in the EU – The post-
Lisbon legislative agenda’ Trier 9 June 2011 (Speech 11/424 09/06/11). ‘Let me
stress that the present package of minimum rules is just a rst step to address
victims’ rights. We will continue to examine key issues relating to victims, for
instance by improving the application of the 2004 Directive on compensation for
crime victims and studying the provision of legal aid to victims. I also want to look
at other ideas, such as victims surcharge nes or offender compensation or restitu-
tion schemes to ensure that victims across Europe obtain a fair compensation to the
crime that was inicted on them. Next year I will therefore come up with a second
package of measures to ensure that we develop a sustained effort in strengthening
the rights of the victims of crime.’
 State compensation for victims of violent crime 135

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of terrorism in respect of designated acts committed outside the UK. Available at: www.
justice.gov.uk/downloads/victims-and-witnesses/cic-a/victims-overseas-terrorism/
vots-ex-gratia-scheme.pdf [Accessed 8 March 2013].
Ministry of Justice, 2012b. A guide to the Victims of Overseas Terrorism Compensation
Scheme 2012. London: Criminal Injuries Compensation Authority. Available at: www.
justice.gov.uk/downloads/victims-and-witnesses/cic-a/victims-overseas-terrorism/vic-
tim-of-overseas-terrorism-scheme-guide-2012.pdf [Accessed 8 March 2013].
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gov.uk/.../a-gov-response-getting-right-victims [Accessed 8 March 2013].
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[OJP(OVC)–1319] Victims of Crime Act Victim Compensation Grant Program, Final
Guidelines. Federal Register, 66(95), Wednesday, May 16, 2001 / Notices. Available
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2013].
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archives/reports/intdir2005/welcome.html [Accessed 8 March 2013].
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OVC 2011 Report to the Nation. Available at: www.ojp.usdoj.gov/ovc/pubs/reporttona-
tion2011/ReporttoNation2011.pdf [Accessed 8 March 2013].
President’s Task Force on Victims of Crime, Final Report, 1982. Available at: www.ojp.
usdoj.gov/ovc/publications/presdntstskforcrprt/87299.pdf [Accessed 8 March 2013].
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Rock, P., 2004. Constructing victims’ rights. Oxford: Oxford University Press.
Sebok, A., 2004. What’s law got to do with it? Designing compensation schemes in the
shadow of the tort system. De Paul Law Review, 53, pp. 501–526.
Shapo, M., 2005. Compensation for victims of terrorism. Dobbs Ferry: Oceana Publications.
Sommer, H., 2003. Providing compensation for harm caused by terrorism: lessons learned
in the Israeli experience. Indiana Law Review, 36, pp. 335–365.
Spalek, B., 2006. Crime victims: theory, policy and practice. London: Palgrave
Macmillan.
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Vienna: United Nations Office on Drugs and Crime. Available at: www.un.org/en/ter-
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Yanay, U., 2004. A tough life for victims: crime victims and the Israeli justice system.
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& Francis, pp. 373–396.
Chapter 7

Legal protection and assistance for

victims of human trafficking in the
United States
A harm reduction approach
Xin Ren

Introduction
Human trafficking is a form of modern-day slavery, a crime against human rights
and dignity. It involves an act of recruiting, transporting, transferring, harbouring
or receiving a person through a use of force, threat, coercion or other means, for
the purpose of sexual and/or labour exploitation (United Nations Office of Drug
Control (UNODC) 2013). The most recent estimate by the International Labour
Organization from open sources suggests that at least 20.9 million people – men,
women and children – are in forced labour even though it is still difficult to know
exactly how many of these victims are resulted from trafficking. For a conserva-
tive estimate, some 2.5 million people are trafficked for labour and sexual exploi-
tation in the world (United Nations Global Initiative to Fight Human Trafficking
(UN.GIFT) 2010). Women, children and migrant workers are the most vulnerable
groups who often fall into the hands of traffickers, in their own countries and/or
abroad. Women count for 55 to 60 per cent of victims in those detected human
trafficking cases while children make up 27 per cent of total victims (17 per cent
girls and 10 per cent boys); adult males make up the remaining 14 per cent of
the total victim population (UNODC 2012a). Although developing countries
and regions are accountable for contributing a large number of victims to global
human trafficking, ‘every country in the world is affected by trafficking, whether
as a country of origin, transit or destination for victims’ (UNODC 2013, p. 27).
Since the adoption of the United Nations Protocol to Prevent, Suppress, and Pun-
ish Trafficking in Persons, Especially Women and Children (UN 2000a, The UN
Trafficking Protocol thereafter) and the United Nations Protocol against the Smug-
gling of Migrants by Land, Sea, and Air (UN 2000b, The UN Smuggling Protocol
thereafter), much progress has been made in preventing trafficking, detecting and
prosecuting traffickers, and rescuing and assisting victims of human trafficking in
the world. A global campaign against human trafficking was launched and has since
transcended the traditional definition of human trafficking that puts an emphasis
on moving, transporting or trafficking victims from one place to another, to the
criminal acts of fraud, violence, exploitation, and abuse of trafficked victims. To
recognize the importance of protecting human rights and human dignity of victims,
 Human trafficking in the United States 141

a harm reduction approach is reshaping the global war against human trafficking
by developing victim protection-centred national laws, enforcement strategies and
victim assistance plans. This chapter outlines legal instruments developed in the
United States at the federal and state level to identify victims, prosecute traffick-
ers and qualify victims and their families for various federally and state sponsored
assistance programmes that help victims to recover and reintegrate back to a normal
life. It also provides an examination of these legal protections and assistance pro-
grammes available for rescued victims of human trafficking.

Common misconceptions about human trafficking

Due to the victims’ behaviour in crime reports and the prioritized enforcement
of law against human trafficking, there are many public misperceptions about
the definition, nature and extent of human trafficking, and the characteristics of
victims and victimization. Below are some common misconceptions about traf-
ficking in human beings.

• Human trafficking requires crossing national or international borders.

• Crime of trafficking in persons must involve moving victims from one loca-
tion to another.
• Trafficking only involves foreign nationals, not US citizens.
• It is not illegal if a person consents to being trafficked.
• You can consent to labour exploitation, domestic servitude or slave type of
work.
• If someone is paid by his/her employer, he or she cannot be victim of human
trafficking.
• Sending victims home is the best solution for victim assistance/services.

These misconceptions not only represent general public’s reluctant attitude

towards victims of human trafficking but also hinder law enforcement’s efforts
in rescuing and assisting victims of human trafficking. Since the enactment of
Trafficking Victims Protection Act in 2001, national statistical data compiled by
the USDOJ on human trafficking have shown that human trafficking is not just a
problem that only involves foreigners but also many American citizens, especially
children and young women who were born and grew up in the United States.

Current trends of trafficking in persons in the United States

According to the US Department of Justice 2011 report, the Task Forces on
Human Trafficking (a total of forty-two regional Task Forces) opened investiga-
tion on a total of 2,515 suspected incidents of human trafficking cases between
January 2008 and June 2010. A total of 389 human trafficking cases were con-
firmed, involving 488 offenders and 527 victims. Of those victims 90 per cent of
victims were female and 10 per cent male. Comparing sex trafficking with labour
142 Xin Ren

trafficking, eight in ten cases investigated were sex trafficking, while one in ten
cases was labour trafficking. For gender distribution of victims, an overwhelm-
ing majority of victims in sex trafficking were female (96 per cent) versus only
68 per cent of victims in labour trafficking. Victims in sex trafficking seem also
younger (13 per cent were twenty-five or older) while victims tended to be older
in labour trafficking (68 per cent were twenty-five or older). For victims’ ethnic/
racial background, white (26 per cent) and black (40 per cent) were more likely
to be victims of sex trafficking, while Hispanic (63 per cent) and Asian (17 per
cent) were more likely to be victims of labour trafficking. Although most inci-
dents involved allegations of sex trafficking, 350 incidents involved allegations
of labour trafficking in unregulated industries (e.g. drug sales, forced begging or
roadside sales) and/or more commercial industries (e.g. hair salons, hotels and
bars). Four-fifths of victims in confirmed commercial sex trafficking were US
citizens (83 per cent), while the majority of victims in confirmed labour traffick-
ing were undocumented aliens (67 per cent) and qualified aliens (28 per cent).1 In
most confirmed human trafficking cases, male suspects counted for 82 per cent.
For sex trafficking cases 62 per cent of suspects were black, while 48 per cent of
suspects in labour trafficking were Hispanic. Due to the statutory mandates, fed-
eral agencies are more likely to lead in labour trafficking investigations (29 per
cent) while the overwhelming majority of sex trafficking investigations (93 per
cent) are led by local law enforcement agencies (Banks and Kyckelhahn 2011).
The most recent statistics from the US Department of Homeland Security
(USDHS) provide additional data on the human trafficking cases investigated by the
Homeland Security Investigations (HSI). Table 7.1 compares the numbers of human
trafficking cases investigated by HIS between 2011 and 2012. Although the data do
not separate sex trafficking and labour trafficking cases, the characteristics reported
by the USDOJ data, it is clear that federal agencies take the lead in more labour
trafficking cases than in sex trafficking cases. Another noteworthy characteristic is
that though the investigation outcome (indictment and conviction) has continuously
improved, with increased numbers of successful indictments and convictions, the
total value of assets seized in investigations has sharply declined by 45 per cent in
2012 from the previous year: it averaged US$2,845 per case in 2011 and US$1,262
per case in 2012. Speculatively, most trafficking cases in 2012 do not involve large
illicit business establishments that have huge profits and assets.

Understanding the legal framework of human trafficking

The UN Trafficking Protocol (2000) and the UN Smuggling Protocol (2003), as two
of three supplemental legal instruments to the United Nations Convention against
Transnational Organized Crime2 (The UN Palermo Convention thereafter), are the
two main international instruments in fighting against global human trafficking. The
UN Trafficking Protocol is the first global legally binding instrument with an agreed
definition of trafficking in persons. The intention of this definition is to facilitate
convergence in national approaches with regard to the establishment of domestic
 Human trafficking in the United States 143

Table 7.1 Human trafficking cases investigated by HSI in 2011 and 2012

Case status 2011 2012 Percentage change

Cases initiated 722 894 +24

Arrested 938 967 +3

Indictments 444 559 +26

Convictions 271 381 +4

Seizure of assets US$2,054,459 US$1,128,553 -45

Source: HSI, USDHS, 2013, from a presentation made by an HIS agent on 8 February 2013.

criminalization of human trafficking that would support effective international

cooperation in investigating and prosecuting cases of human trafficking and protect
and assist the victims of human trafficking with full respect for their human rights
(UNODC 2012b). According to the UN Trafficking Protocol, article 3(a):

Trafficking in persons (TIP) shall mean the recruitment, transportation, trans-

fer, harbouring or receipt of persons, by means of the threat or use of force
or other forms of coercion, of abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation. Exploitation shall include, at
a minimum, the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.
(UN.GIFT 2010, p. 2)

The UN definition clearly lays out the legal foundation for individual state parties
to promulgate their own national law against human trafficking. The definition
identifies three legal material elements in recognizing prosecutable crime of traf-
ficking in persons: process to obtain a human being, means to control a human
being and goals to profit from exploitation and abuse of persons. Figure 7.1 illus-
trates the legal elements in identifying a crime of trafficking in persons.3
When a condition from each category is met, the result is a crime of trafficking
in persons. The legal community seems to have the consensus that for adults, if
any of those illegal means is used to profit from a victim, the victim’s consent is
irrelevant. For children, the consent is irrelevant if any of these illegal means is
used to control a child for purpose of making profit by exploiting a child.
Responding to the UN Palermo Convention against Transnational Organized Crime
and the UN Trafficking Protocol, the US Congress quickly enacted the Trafficking
144 Xin Ren

PROCESS MEANS GOALS

Recruiting Threat Profit from
or Or
Force Prostitution
Transporting Or or
or Coercion Sexual Exploitation
Or or
Transferring Abduction Forced Labour
or Or or
Fraud Servitude
Harbouring Or or
or Deception Slavery
Or or
Receiving Abuse of Power Organ Removal

Figure 7.1 The legal elements in identifying a crime of trafficking in persons

Victims Protection Act (TVPA) in 2000. TVPA emphasizes three ‘Ps’ (Prevention,
Prosecution and Protection) and defines human trafficking as the recruitment, har-
bouring, transportation, provision or obtaining of a person for one of three purposes:

• labour or services, through the use of force, fraud, or coercion for the purposes
of subjection to involuntary servitude, peonage, debt bondage or slavery;
• a commercial sex act through the use of force, fraud or coercion;
• any commercial sex act, if the person is under eighteen years of age, regard-
less of whether any form of coercion is involved.

TVPA also provides protection to trafficked persons through immigration relief

and other benefits, authorizes the US Department of State to compile data and
release annual reports on an individual country’s condition of trafficking in per-
sons, and establishes interagency task forces to monitor and combat trafficking in
persons (GovTrack 2000).
The Trafficking Victims Protection Reauthorization Act of 2005 (TVPRA 2005)
further requires the US Department of Justice to publish a biennial report on the
scope and characteristics of human trafficking in the US, by using available data
from individual states and local authorities. As part of an effort to meet these con-
gressional mandates, the Bureau of Justice Statistics (BJS), in partnership with the
Bureau of Justice Assistance (BJA), Northeastern University (NEU) and the Urban
Institute (UI) developed the Human Trafficking Reporting System (HTRS). The
HTRS is a crime incident-based reporting system that collects human trafficking
data from forty-two regional Task Forces which cover 25 per cent of the US resi-
dential population. To be confirmed as human trafficking: 1) The case must have
led to an arrest and been subsequently confirmed by law enforcement, or 2) The
 Human trafficking in the United States 145

victims in the case must a) have had a ‘continuing presence’ requested on their
behalf, or b) have received an endorsement for a T-Visa or U-Visa application.4
In 2008, when TVPA was reauthorized by the Congress, additional new crimes
relating to trafficking in persons were incorporated into the federal statutes. These
new offences are:

• 18 USC § 1351: Fraud in Foreign Labour Contracting: ‘Whoever know-

ingly and with intent to defraud recruits, solicits or hires a person outside the
United States for purposes of employment in the United States by means of
materially false or fraudulent pretenses, representations or promises regard-
ing that employment shall be fined under this title or imprisoned for not more
than 5 years, or both.’
• 18 USC § 1593A: Benefiting Financially from Peonage, Slavery, and Traf-
ficking in Persons: ‘Whoever knowingly benefits, financially or by receiving
anything of value, from participation in a venture which has engaged in any
act in violation of section 1581(a) 1592, or 1595(a) [18 USCS § 1581(a) 1592,
or 1595(a)], knowing or in reckless disregard of the fact that the venture has
engaged in such violation, shall be fined under this title or imprisoned in the
same manner as a completed violation of such section.’
• 18 USC § § 1583-84, Enticement into slavery stipulates that anyone who kid-
naps or carries away any other person, with the intent that such other person be
sold into involuntary servitude, or held as a slave; entices, persuades, or induces
any other person to go on board any vessel or to any other place with the intent
that he or she may be made or held as a slave, or sent out of the country to be
so made or held; or sale into involuntary servitude, or obstructs, or attempts to
obstruct, or in any way interferes with or prevents the enforcement of this law
is subject to criminal fine and/or imprisonment up to twenty years.
• 18 USC § §1591-92 Sex trafficking of children has expanded to include
‘reckless disregard’ of force, fraud or coercion, and minor’s age. In regards
to minor’s age, no actual knowledge of minor age is required for prosecution.
The defendant just needs ‘reasonable opportunity to observe’ the victim’s
age; and 18 USC § 1594 Trafficking Conspiracy.

Besides these enhanced federal statutes, a new jurisdiction called extra-territorial

jurisdiction was introduced under TVPRA of 2008. In addition to any domestic
or extra-territorial jurisdiction otherwise provided by law, the courts of the United
States now have extra-territorial jurisdiction over any offence (or any attempt or
conspiracy to commit an offence) under sections 18 USCS § 1581, 1583, 1584,
1589, 1590, or 1591 if (1) an alleged offender is a national of the United States
or an alien lawfully admitted for permanent residence (as those terms are defined
in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or (2) an
alleged offender is present in the United States, irrespective of the nationality of
the alleged offender.
146 Xin Ren

When the TVPA was reintroduced in 2011 for reauthorization (TVPRA 2011),5
additional terms and conditions were added to the penalty expansion against sex
offenders. These terms are: 1) limit or restrict the passport of a sex offender to one
year; and 2) revoke the passport of a person convicted of a sex crime in a court of
competent jurisdiction in foreign countries. To effectively combat labour trafficking,
the TVPRA of 2011 also included additional provisions: 1) to expand Labor Depart-
ment’s responsibility in identifying goods produced by forced and child labour in
foreign countries and company/business/contractor used forced or child labour to
produce those goods; 2) to recommend that the Peace Corps joins the Interagency
Task Force; 3) to require the Department of Defense to designate a director on anti-
trafficking policies; and 4) expand protection and assistance for victims of traffick-
ing in persons (GovTrack 2011). The TVPRA 2013 also puts a new focus on human
trafficking by targeting those countries where children are trafficked or abused for
exploitation such as using child labour for exported goods or using child soldiers
in civil or domestic wars. The TVPRA 2013 renews critical federal anti-trafficking
programmes, provides invaluable resources for the provision of specialized services
for survivors of human trafficking, grants prosecutors new tools to go after the traf-
fickers who exploit others and enhances partnerships with focus countries to protect
children and prevent child trafficking.

Individual state responses to human trafficking

Responding to TVPA legislation at the federal level, individual states also enacted state
laws to combat trafficking in persons. As of 31 July 2012, all fifty states have passed
Criminal Anti-Trafficking Laws, with forty-eight states passing criminal statutes
against sex trafficking and all fifty establishing labour trafficking laws (Polaris Project
2012). West Virginia became the forty-ninth State to pass anti-trafficking legislation
following Ohio in March 2010 and Massachusetts in November 2010. Recently, the
Polaris Project, a non-profit NGO based in Washington DC devoted to fighting against
human trafficking, developed a state law rating system (ten categories) with four tiers
that can be scored between zero and eleven points to measure the comprehensiveness
of anti-trafficking laws in individual states. On the basis of this rating, as of 31 July
2013, thirty-two states are now rated in Tier 1 (7–11 points), up from twenty-one states
in 2012. Washington and New Jersey received perfect scores (11 points), meaning
they have most comprehensive anti-trafficking laws that fulfil all ten categories (see
Figure 7.2). The ten categories used in rating comprehensiveness of anti-trafficking
laws are ranged from targeted sex and labour trafficking to law enforcement training
and to protection of minors of sex trafficking and exploitation.

Typology of victims of human trafficking

Traditionally, victims of human trafficking are often categorized according to the
final disposing outcomes at the end of the trafficking process or by the exploitation
types (such as victims of sex trafficking, labour trafficking or organ trafficking).
 Human trafficking in the United States 147

Improvements in State Laws: 2011

WA NH
VT ME
MT ND
OR MN
MA
ID
SD Wl NY
WY Ml Rl
IA PA <1
NV NE Nj
OH
LIT II IN DE
CA
CO wv VA
MD
K5 MO KV
NC DC
TN
AZ
MM
OK ,\k St
AL GA
MS
LA
TX

Afc
FL
Ht

LEGEND
Tier 1 Tier 3
Tier 2 Tier 4

Figure 7.2 Polaris Project (2013): 2013 State ratings on human trafficking laws.
Source: Polaris Project 2013; available at: www.polarisproject.org/what-we-do/policy-advocacy/
national-policy/state-ratings-on-human-trafficking-laws/2013-state-ratings-on-human-traffick-
ing-laws [Accessed 28 February 2014].

However, in reality, trafficking victims often have a dual status before the law. On
the one hand, they may have been victims of trafficking in persons; on the other
hand they are often illegal aliens who entered the country unlawfully without proper
documentation and/or have criminal status (for example, they may be prostitutes6,
drug offenders or juvenile delinquents). For instance, many international migrant
workers illegally cross international borders and unlawfully enter a country without
proper or legal documentation such as a passport and a visa. Under the immigration
law in any given country, these migrant workers are often viewed as illegal aliens
who have violated immigration and border control laws, even though they may have
been subjected to sex or labour exploitation and abuse in the hands of traffickers
or smugglers. Their illegal or criminal status often makes it almost impossible for
them to consider themselves as victims of crime and thus they are reluctant to report
their victimization to the authorities. Their dual legal status also may make local
law enforcement officers less willing to help them in case of a reported abuse. Fur-
thermore, for those victims whose legal status is not in question because of their
legitimate citizenship, the dual status of victims may also exist in the situation where
victims may be involved in prostitution or drug crime. Typically, those traditionally
labelled as juvenile delinquents or runaway children under the family welfare and
child protection law may also potentially be victims of human trafficking when they
are lured, controlled, trafficked and exploited by adult pimp-traffickers. To provide
effective protection for victims of human trafficking for harm reduction purposes7,
it is critical to recognize the dual legal status of victims in trafficking cases and go
148 Xin Ren

beyond victims’ illegal status to see their suffering, their victimization and the grave
violation of their human rights and human dignity. The harm reduction approach is
vital in facilitating effective identification of victims, criminal investigations and
prosecutions, and in providing timely needed assistance to these victims.
By recognizing the foremost importance of victims’ suffering and the grave
violation of their human rights, the typology of victims of human trafficking can
be categorized into the following two large groups:

1 US immigrants with non-US nationality:

• Immigrants with legal documentation/status: students with an F-1 visa; immi-
grants with a work permit; immigrants married to a US citizen; immigrants
with a legal status of refugee; and immigrants with permanent resident status.
• Illegal immigrants: entered country legally but overstayed their legal
status; entered country illegally with legal documents; entered country
illegally without legal documents; and seasonal/migrant workers from
neighbouring countries.
2 Non-immigrants (US citizens): runaway children (run away because of
trouble at home or because they are lured away by deception outside of the
family); juvenile delinquents (prostitution, drug crime, other crime); street/
homeless children; mentally ill persons; drug addicts; and sex workers.

The dual status of many victims in human trafficking often creates confusion and dif-
ficulty in identifying victims in the criminal investigation process. Victims sometimes
may be reluctant to report victimization or refuse to cooperate with the authorities,
because they are aware of their illegal status in the country and are afraid of arrest
and detention for deportation. There are a number of other reasons why victims may
not be able or refuse to help with the identification process: total illiteracy; severe
mental retardation or psychological trauma; language barriers; fear of the police;
lack of nationality/citizenship (stateless people); or, as noted earlier, simply because
they wish to avoid identification in order to stall or avoid the deportation process. In
countries with victims’ protection-centred laws against trafficking in persons, law
enforcement, prosecution and court systems emphasize protection and assistance to
enhance the success rates of prosecution and conviction, while in other countries
with offenders-centred anti-trafficking laws, the government agencies often concen-
trate on deportation and repatriation, by arresting, detaining and confining victims in
detention centres for identification purposes, without any other assistance and serv-
ices for victims. The victims’ illegal alien status supersedes their victim status. For
those domestic victims with dual status before the law, their fate is often no better
than their international counterparts. For instance, when underage prostitutes, young
drug offenders or child street beggars are arrested by police, they are simply booked
as juvenile offenders or runaway children by police even though a little detailed inter-
view will reveal that those young children were actually recruited and were being
controlled by pimps-traffickers, and are victims of human trafficking.
 Human trafficking in the United States 149

Human trafficking is often entangled with the phenomenon of international migra-

tion as a result of the gaps in economic development among countries/regions in the
world (ILO 2012). Although international migration is not the same as transnational
trafficking in persons, traffickers do strive to prey on those vulnerable groups among
migrating workers such as women, children and stateless people, those who live in
poverty in mountainous or isolated regions, those uneducated, unskilled, and socially
and economically marginalized for various discriminations when millions of migrant
workers are riding the influx of international migration (Tullao et al. 2007). When
the legitimate channel or venue of migration is not available to (or is limited for)
those who lack social capital and resources, this provides attractive opportunities
for traffickers/smugglers to help them chase the same dream shared by millions of
migrant workers. Some migrant workers may even have paid their way to illegally
enter a country in hope of finding a job or better economic opportunity. When they
are abused at the hands of traffickers, a false perception that the victims have seem-
ingly precipitated their own victimization and thus are partially responsible for their
own victimization is created. To emphasize the harm reduction, the victims’ suffer-
ing should be the overriding principle in identifying victims of human trafficking,
regardless how they got into the trafficking situation in the first place.

Human trafficking survivors’ needs and

assistance available under TVPA
Legal protection for victims of human trafficking covers a wide range of assist-
ance programmes and services. Victims are entitled to: privacy; information; legal
representation; a hearing in court; medical assistance; compensation for damage/
injury; social assistance; employment; and they may also seek residence, return
home, and reunify with their families.
Because the survivors of human trafficking are likely to suffer serious physical,
psychological and/or sexual abuse at the hand of traffickers, an extensive network
of culturally and linguistically appropriate service providers are required to meet
their urgent and acute needs. These include:

• language assistance during intake interviews, police investigations and testi-

mony in court;
• housing assistance for temporary shelter or permanent residence;
• food and clothing for the immediately needy family;
• medical care (both emergency and long-term care) and health education;
• mental health care for emotional and psychological trauma;
• legal aid for immigration and legal representation in various legal proceedings;
• safety planning for victims and their families;
• training for independent living and working skills, job placement/employ-
ment; and
• human rights education.
150 Xin Ren

The services/assistances available to victims of human trafficking in the United

States can be considered under five headings: immigration relief, benefits and
services, civil remedies, legal aid and assistance, and the Equal Employment
Opportunity Commission (EEOC).

Immigration relief
Survivors of trafficking in persons can receive immigration relief, provided by
the TVPA, for temporary or permanent stays in the US if they meet the condi-
tion that they agree to assist the authorities in their criminal investigation and/or
prosecution. In an effort to eliminate further delays, facilitate criminal investiga-
tions and assist victims in obtaining the legal status intended by the US Congress
in the ‘Victims of Trafficking and Violence Protection Act’ (VTVPA),8 a number
of immigration reliefs are made available for victims of human trafficking and
certain criminal activities. The forms of relief specific to TIP victims include:
temporary relief through continued presence; the possibility of adjusting status to
become a legal permanent resident through T-Visa or U-visa; and family parole
for minor victims of TIP.
Continued Presence is defined by the US Immigration and Customs Enforce-
ment (USICE 2012) as:

a temporary immigration status provided to individuals identified by law

enforcement as victims of human trafficking. This status allows victims of
human trafficking to remain in the US temporarily during the ongoing inves-
tigation of human trafficking-related crimes committed against them.

Continued Presence is initially granted for one year and may be renewed in
one-year increments. It is authorized under the provisions of section 107(c)(3)
of the TVPA, which has since been reauthorized, and is codified at 22 U.S.C.
§ 7105(c)(3). Initially, only federal law enforcement agents can request a Con-
tinued Presence status for a trafficking survivor to receive this benefit in the
United States. However, Continued Presence eligibility was greatly expanded
when TVPA was reauthorized in 2008. TVPRA of 2008 stipulates that:

Law Enforcement shall take measures to protect the safety of trafficking victims
including taking measures to protect their family members; Continued Pres-
ence shall be extended if the individual has filed a civil action under Section 18
USC §1595 until the action is concluded; materials about Continued Presence
for state and local law enforcement will be developed and distributed.

The T non-immigrant status (T-Visa) was created by the US Congress in TVPA

(2000) to create a set of non-immigrant visas for those who are or have been vic-
tims of human trafficking, protect victims of human trafficking, and allow victims
to remain in the United States to assist in an investigation or prosecution of human
 Human trafficking in the United States 151

trafficking. It enables certain victims of human trafficking to live and work in the
US for up to four years. Victims can petition to have spouses and children accom-
pany them; they may receive government benefits, including cash assistance for
eight months; and they may apply for the Green Card (Permanent Residence sta-
tus). Meeting all of the following criteria may qualify a person for a T-Visa:

• is or has been victim of severe form of trafficking in persons;

• is present in US, American Samoa, Northern Marianas on account of traf-
ficking;
• has complied with reasonable requests for assistance in investigation or pro-
secution of acts of trafficking (children under eighteen do not need to meet
this criterion but do need to have proof of age);
• would suffer extreme hardship involving unusual and severe harm upon
removal from the US.

With regard to the requirement of assisting in investigation and prosecution, the

Violence Against Women Act (VAWA) 2005 made changes to the original mandate
in TVPA by including provisions that law enforcement cooperation is not required
for trafficking victims whose physical or psychological trauma impedes their abil-
ity to cooperate with law enforcement. Evidence of physical trauma suffered can be
provided through forensic photographs of bruises and injuries, police reports, medi-
cal reports and affidavits by witnesses. Evidence of psychological trauma suffered
can be provided through medical reports or affidavits by medical personnel.
The U-nonimmigrant status and U-Visa classification was originally created in
2000 with the passage of VAWA. It allows a battered immigrant victim to petition
for legal status in the United States without having to rely on an abusive spouse
who is a US citizen or legal permanent resident, or parents, or children to sponsor
their petition. For many immigrant victims of domestic violence, the abusers who
are US citizens or lawful permanent resident family members may threaten to with-
hold their sponsorship as a means to continuously control and abuse victims. The
purpose of the U-Nonimmigrant status or U-Visa is to allow victims the opportunity
to ‘self-petition’ or seek legal immigration status without sponsors while they help
law enforcement agencies investigate and prosecute cases of domestic violence,
sexual assault, human trafficking and other crimes, as well as offer to protect victims
of such crimes. This classification provides immigration opportunity to victims of
qualified criminal activities (see list below) who suffered substantial physical or
mental abuse as a result and who have been, are being or likely to be helpful to law
enforcement. Under the revised VAWA, U-Visa applicants no longer have to show
that they would face extreme hardship and they are also allowed to apply for per-
manent residence from outside the US, if they can demonstrate that they were the
victims of domestic violence in the US (USDHS 2009).
The qualifying criminal activities for T-Visa or U-Visa are not defined in the
same ways. For a T-Visa, ‘Severe forms of trafficking in persons’ means:
152 Xin Ren

A sex trafficking in which a commercial sex act is induced by force, fraud, or

coercion, or in which the person induced to perform such act has not attained
18 years of age; or
B the recruitment, harbouring, transportation, provision, or obtaining of a person
for labour or services, through the use of force, fraud, or coercion for the pur-
pose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

For a U-Visa, ‘qualifying criminal activity’ is defined by statute to be:

Activity involving one or more of the following or any similar activity in

violation of Federal, State, or local criminal law:

Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive

sexual contact; prostitution; sexual exploitation; female genital mutilation;
being held hostage; peonage; involuntary servitude; slave trade; kidnapping;
abduction; unlawful criminal restraint; false imprisonment; blackmail; extor-
tion; manslaughter; murder; felonious assault; witness tampering; obstruction
of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the
above mentioned crimes.

Advanced Parole for family members is the third immigration relief under
TVPRA 2005. Under 8 USC §1229(b)(6), law enforcement agencies may sub-
mit written requests for advanced parole for family members of trafficked per-
sons. Advanced Parole may be extended until final determination of the T-visa
application for victims under twenty-one: the spouse, child, parent, or unmar-
ried sibling under eighteen can be included. For victims who are twenty-one or
older, only the spouse or child can be included. All victims are encompassed
irrespective of age, and so is a parent or sibling if the law enforcement agency
determines them to be in present danger of retaliation as a result of either the
victim’s escape from a severe form of trafficking or because of their cooperation
with law enforcement.

Benefits and services 9

Under TVPA, victims are eligible to receive benefits and services from mul-
tiple sources with a federal certification. Certification allows victims of traf-
ficking who are non-US citizens to be eligible for a special non-immigrant
status that confers certain benefits and services under any federal or state pro-
gramme or activity to the same extent as a refugee. Certification provides vic-
tims of trafficking with the necessary documentation to be eligible to receive
benefits and services that they may need to rebuild their lives while remaining
in the United States. Victims of trafficking who are US citizens do not need
to be certified in this way because they may already be eligible for many
benefits. Victims of a severe form of trafficking who have been certified by
 Human trafficking in the United States 153

the Department of Health and Human Services are eligible for benefits to the
same extent as refugees:

a Federal and state public assistance benefits, such as Refugee Cash and Medi-
cal Assistance, Temporary Assistance for Needy Families (TANF), Medicaid,
Supplemental Security Income (SSI), and Food Stamps; and
b Refugee self-sufficiency Matching Grant Program and other ORR (Office of
Refugee Resettlement) discretionary grant programmes and ORR discretion-
ary grant benefits programmes for victims of trafficking.

At the State level, for example, the California Department of Social Services pro-
vides: Refugee Cash Assistance (limited to eight months for state-funded services,
eligibility begins from date of the application for the benefits); Refugee Social
Services (available for sixty months from the date of application for benefits);
Food Stamps; CALWORKs (limited to a five-year period for adults: aid begins the
date of application); Cash Assistance Program for Immigrants (CAPI); Employ-
ment Social Services; In-Home Supportive Services (IHSS) Programs (Personal
Care Services Program (PCSP), IHSS Plus Waiver and IHSS Residual Program);
State of California Department of Health and Human Services (Refugee medical
assistance, Medi-Cal, Healthy Families Program).

Civil remedies
On 19 December 2003, when TVPA was reauthorized by Congress, provision was
made for a private right of action for trafficked persons to seek civil remedy by
holding his/her abusive spouse, employer, traffickers accountable for the injuries
and damages. Civil litigation against perpetrators/abusers in human trafficking is
a powerful tool to support victims in pursuing civil litigations against traffickers/
abusers for civil compensation and serves as a disincentive to deter potential traf-
fickers/abusive employers from financially exploiting victims in the future (Kim
and Werner 2005). It may be the only means by which victims of trafficking can
be ‘made whole’ again to recover and resume a normal life.10

Legal aid and assistance

‘Helping trafficking victims access legal avenues to justice, restitution, and other
compensation for their suffering is a key element of any effective victim protection
strategy’ (US Department of State 2009, p. 1), and this is particularly true when
addressing the needs of foreign and disadvantaged victims who are not familiar
with laws, customs, rights, and procedures and lack the financial resources needed
to fund representation by private attorneys in the various legal proceedings they
often encounter. One way in which the State helps is to provide legal aid attorneys
to represent victims in civil litigation, criminal proceedings, immigration petition
and protection of minors.
154 Xin Ren

Civil litigation includes litigation against employers, traffickers or buyers of a

person; applications for immigration reliefs such as a petition for T- or U-visa and
unification of family; and the dissolving of a marriage or obtaining a marriage licence
(this will include such issues as child custody, support and visitation rights; property
division; spousal support; return home; obtaining of legal travel documents; and
financial assistance for travel). Criminal proceedings include the following:

• advise victims of their rights, options, consequences of criminal trial and

prosecutions;
• represent victims in criminal investigation and prosecution process;
• represent victims in restitution settlements;
• notify victims upon release of offenders;
• advise and represent victims in applying for the victim compensation fund.

Compensation for civil damages includes compensatory damages, punitive dam-

ages, nominal damages, injunctive and other equitable relief, liquidated dam-
ages, statutory damages, pre-judgement interest, attorney fees and costs, and the
Assembly Bill 22 in Legislature of the State of California (AB22) provides for
damages if human trafficking is proven.

Equal Employment Opportunity Commission

The EEOC, a federal law enforcement agency, was created under the 1964 Civil
Rights Act to investigate claims of discrimination in workplace and to work out
settlements between worker and employer/company in judicial proceedings. It
consists of a five-member Commission, a General Council and more than fifty
offices located nationwide in fifteen districts. The EEOC was also given author-
ity in 1972 to sue employers in federal court on behalf of employees, including
illegal alien workers, for violation of federal statutes. All financial compensation
recovered from EEOC lawsuits goes to victims. Under the federal mandates, the
EEOC is responsible for enforcing the following four laws: Title VII of the Civil
Rights Act of 1964; Equal Pay Act of 1963; Age Discrimination in Employment
Act of 1967; and Americans with Disabilities Act of 1990.
In recent years, the EEOC has joined other law enforcement agencies to become
a powerhouse in fighting against human trafficking, especially labour traffick-
ing. It represents victims against abusive employers in labour trafficking cases in
civil courts for the following wrongdoings: denial of benefits; withholding wages;
confiscation of ID/legal documents; sexual harassment in the workplace; sexual
assault and rape of domestic or farm workers (legal or illegal); physical abuse or
emotional abuse; sex discrimination in the workplace; and forcible performance
of illegal acts in the course of employment.
Trafficking cases often involve discrimination on the basis of national origin
or race. Even when employees are legally brought into this country, employers
may discriminate on the basis of national origin or race through the use of force,
 Human trafficking in the United States 155

fraud or coercion. This discrimination may include harassment and setting differ-
ent terms and conditions of employment. It also may include retaliation against
workers for exercising their rights under the anti-discrimination laws, by threaten-
ing them with or subjecting them to suspension from work, deportation, physical
harm or fraud. In trafficking cases, it is not unusual for employers to maintain seg-
regated jobs, pay unequal wages or deduct unreasonable amounts from pay. Many
labour trafficking cases also involve sexual harassment, exploitation, and sexual
assault or rape. Trafficked women are sometimes sexually assaulted or subjected
to other severe sexual harassment. The EEOC is the federal agency charged with
preventing, investigating and remedying sex discrimination, including sexual har-
assment and sexual exploitation (EEOC 2011a).
In recent years, the EEOC has successfully sued several large corporations for
alleged discrimination in labour trafficking cases. In 2006, Federal District Court
Judge Claire V. Eagan in a seventy-one-page decision following two earlier trials
ordered John Pickle Co. to pay US$1.24 million compensation to fifty-two for-
eign workers in a labour trafficking case. The EEOC’s lawsuit was joined with a
related civil action which had been filed by the workers on their own behalf, alleg-
ing false imprisonment, minimum wage violations under the Fair Labour Stand-
ards Act (FLSA), deceit and intentional infliction of emotional distress.11 The total
damages awarded by the Court addressed the claims in both the government’s suit
and the private action. In the same year, the EEOC also settled a civil litigation
against Trans Bay Steel Inc. for an estimated US$1 million in total monetary relief
and compensation for forty-eight welders of Thai descent who were discriminated
against and exploited due to their national origin.12 In 2011, in what was then its
largest human trafficking case in agriculture, the EEOC filed lawsuits in Hawaii
and Washington against Global Horizons Inc., a Beverly Hills-based farm labour
contractor, and eight farms. The EEOC contended that Global Horizons engaged
in a pattern or practice of national origin and race discrimination, harassment
and retaliation, when it trafficked over two hundred Thai male victims to farms
in Hawaii and Washington where they were subjected to severe abuse13 (EEOC
2011b).

Conclusions
It is clear that human trafficking is an emerging human rights issue in the twenty-
first century. The real issue of harm behind trafficking, transporting or moving
human beings across national or international borders is not about trafficking per
se but about the slavery, exploitation and abuse of human rights and human dig-
nity that it involves. As President Obama stated recently ‘…[it human traffick-
ing] ought to concern every nation because it endangers public health and fuels
violence and organized crime… It is barbaric and it is evil, and it has no place in
a civilized world’ (Human Trafficking Watch 2013). For public health, commu-
nity safety and society’s wellbeing, prevention and protection policies must focus
on reducing harm for victims of human trafficking, especially in the post-rescue
156 Xin Ren

stage. Victims have suffered tremendous physical, sexual and psychological abuse
and have survived incredible ordeals at the hands of abusers and traffickers. To
help them recover and resume a normal life, relocating them in a safe and secure
environment, and reuniting them with their family members is the most effective
and humanitarian strategy for successful criminal investigation and prosecution
in any civilized country.

Notes
1 ‘Qualied aliens’ include (Sec 431): Legal permanent residents, asylees, refugees,
aliens paroled into the US for at least one year, aliens whose deportations are being
withheld, aliens granted conditional entry (prior to April 1, 1980), battered alien
spouses, battered alien children, the alien parents of battered children, alien children
of battered parents who t certain criteria, Cuban/Haitian entrants, and victims of a
severe form of trafcking (US Department of Health and Human Services: 2009. See
http://aspe.hhs.gov/hsp/immigration/restrictions-sum.shtml#sec1).
2 The Convention was adopted by General Assembly resolution 55/25 of 15 November
2000 and entered into force in 2003.The third instrument of the Convention is the Pro-
tocol against the Illicit Manufacturing of and Trafcking in Firearms.
3 There is ongoing debate on whether commercial and illegal adoption of children or
trafcking for forced marriage should be recognized as a form of human trafcking
and be included in this denition chart. Those crimes are more prevalent in developing
countries than in the industrialized world. For further information, visit the ILO and
IOM websites for more discussion and details.
4 Under the TVPA mandate, federal statutes (US Code, Title 18) have incorporated the
following provisions in regard to crime of trafcking in persons: 118 U.S.C. § 1581
Peonage (Debt Bondage); 18 U.S.C. § 1583 Enticement into slavery; 18 U.S.C. § 1584
Sale into Involuntary Servitude; 18 U.S.C. § 1589 Forced Labor; 18 U.S.C. § 1590
Trafcking Into Servitude; 18 U.S.C. § 1591 Sex Trafcking; 18 U.S.C. § 1593A Ben-
eting Financially from Peonage, Slavery, and Trafcking in Persons; 18 U.S.C. §
1351 Fraud in Foreign Labor Contracting; 18 U.S.C. § 1592 Falsied or Fraudulent
Documents.
5 This bill (S. 1301 (112th)) was originally introduced on 13 October 2011, in the 112th
session of the US Congress, but was not enacted and was pending for reintroduction
in 2012. The Bill was reintroduced to the Congress in 2012. Led by Senator Leahy, the
TVPRA was reauthorized (P.L. 113-4). On 7 March 2013, President Obama signed this
bill into law.
6 Prostitution is illegal in most States in the US, as it is in the majority of countries in the
world. Even in those countries where it is legal, engagement of an illegal alien in prostitu-
tion is nevertheless deemed illegal because of the alien’s illegal status in the country.
7 Harm reduction is a set of practical strategies that help people reduce the negative
consequences of drug use, alcoholism and mental illness by addressing the conditions
of use and treatment. It was originally developed to deal with drug abuse in the commu-
nity by emphasizing improving the quality of life, health and wellbeing of individuals
and communities as the primary criteria for success (Single et al. 1997; International
Harm Reduction Association 2010).
8 Victims of Trafcking and Violence Protection Act of 2000, Pub. L. No. 106-386 (Oct. 28
2000). Codied at INA §§ 101(a)(15)(T) 101(a)(15)(U) 214(n) 214(p) 245(l), and 245(m).
9 The information contained in this section was partially contributed by CAST (Coalition
Against Slavery and Trafcking in Los Angeles).
 Human trafficking in the United States 157

10 The Trafcking Victims Protection Act of 2003 provides the explicit right to civil action
under 8 USC § 1595 (TVPRA of 2008 – No action may be maintained under this sec-
tion unless it is commenced not later than ten years after the cause of action arose; prior
to 2003 – Implied rights of action under the Thirteenth Amendment and its enabling
statute). California: AB 22 granted explicit right to civil action and treble damages:
Fair Labor Standards Act, Alien Tort Claims Act, Migrant and Seasonal Agricultural
Worker Protection Act, Title VII of the Civil Rights Act and Civil Rights Act of 1866
(‘Section 1981’).
11 Chellen et al. and EEOC v. John Pickle Company, Inc., Case Number 02-CV-0085-
CVE-FHM [Base File] and 02-CV-0979-CVE-FHM [Consolidated] in the US District
Court for the Northern District of Oklahoma.
12 US EEOC v. Trans Bay Steel, Inc., Case Number CV 06-07766 CAS (JTLx).
13 The EEOC led its lawsuit in the US District Court for the District of Hawaii (EEOC
v. Global Horizons, Inc. d/b/a Global Horizons Manpower, Inc., Captain Cook Coffee
Company, Ltd et al., Case Number CV-11-00257-DAE-RLP) and the US District Court
for the Eastern District of Washington (EEOC v. Global Horizons, Inc. d/b/a Global
Horizons Manpower, Inc., Green Acre Farms, Inc. et al., Case Number 2:11-cv-03045-
EFS).

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April 2013].
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Kim, K. and Werner, D., 2005. Civil Litigations on Behalf of Victims of Human Trafficking.
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Part II

Transitional justice
This page intentionally left blank
Chapter 8

Victims, transitional justice and social

reconstruction
Who is setting the agenda?
Harvey M.Weinstein

… what first appears as a hypothesis – with or without its implied alterna-

tives, according to the level of sophistication – turns immediately usually
after a few paragraphs, into a ‘fact’. Which then gives birth to a whole string
of similar non-facts, with the result that the purely speculative character of
the whole enterprise is forgotten.
(Hannah Arendt, On Violence, 1969, p. 6–7)

Introduction
In a post-conflict society, citizens are faced with two critical tasks – holding
accountable those who committed human rights violations and rebuilding a trust-
ing society dedicated to coexistence with former enemies. These two options may
be pursued simultaneously or in sequence but each direction may have the unto-
ward consequence of undermining the other’s goals. In this chapter, I examine this
tension as it is manifested around the needs of those who have suffered repression,
torture, disappearances and mass violence. Victims occupy a special place in the
lexicon of international justice; its Latin derivation connotes a sacrificial animal
(Van Dijk 2009). Post-conflict justice attempts to assuage the sacrifice by securing
punishment for the guilty and sometimes, reparations for the harmed. But what
if a focus on retributive punishment means that a society may have greater dif-
ficulty in securing stability and peace? What if the focus on victimhood results in
long-term negative consequences for those so labelled? Has the notion of univer-
sal norms for international criminal justice disempowered local communities in
their efforts to achieve peace and the opportunity to rebuild their lives? Do truth
commissions meet the needs of victims or are they primarily half-hearted efforts
at state-building? And most importantly, are we wedded to disciplinary beliefs
and structures that blind us to what is best for those who have lost the worlds
they knew? Transitional justice attempts to address many of these questions in its
efforts to respond to both victims and to the needs of a fractured society. I sug-
gest that despite transitional justice’s many accomplishments, this tension remains
unresolved.
162 Harvey M. Weinstein

In examining the complex interaction of victim needs, transitional justice and

social reconstruction, I want to emphasize three points: first, context matters.
Although transitional justice strategies have evolved over time, the underlying
premises about the value of retributive justice and the importance of revealing
factual truth have not changed. These assumptions may make little sense across
cultures and may be resisted. Second, transitional justice processes reinforce a
sense of victimhood and entitlement that rarely is satisfied, leading to dashed
expectations and the maintenance of negative attitudes towards those who have
committed wrongs. Further, those who have suffered at the hands of an abusive
regime may become lost in the politics of victimhood, discipline boundaries and
political power plays. Finally, I argue that the global community has established
transitional justice processes that may clash with the goal of rebuilding socie-
ties. If these societies do not undergo a social transformation towards pro-social
behaviours, then most victims may remain victims – consigned to second-class
status and excluded from access to the rights and privileges of full citizenship. An
emphasis on legalism and the litigation of human rights abuses may lead to the
untoward consequence of neglecting the goals of social reconstruction rather than
contributing to its achievement.
Since the 1990s, the principal focus of transitional justice has been on judi-
cial mechanisms and truth commissions. The rapid growth of a judicial approach
to holding perpetrators legally accountable for their actions in violating interna-
tional humanitarian law reached its zenith in 1998 when 120 countries adopted
the Rome Statute that established a legal framework for the International Criminal
Court. The court entered into force in 2002 when 60 countries ratified the statute
(Bass 2000; Teitel 2003; Roht-Arriaza and Mariezcurrena 2006; Weinstein et al.
2010). The goal of an international tribunal (as with the legal system in general)
is primarily to focus on individuals, to determine their innocence or guilt, and to
sentence them accordingly. Such a court is top-down and is primarily perpetrator-
centred.1 Partially, in response to this, truth commissions that are victim-centred
have evolved sometimes as stand-alone mechanisms, in conjunction with trials,
domestic or international, associated with amnesties or as a prelude to trials.
There is overlap in many goals of truth commissions and trials, e.g. in develop-
ing a record of ‘truth’ or in contributing to the development of historical memory,
although how each mechanism does that or uses these findings differs.
As transitional justice mechanisms have evolved, what is expected of these proc-
esses has evolved as well. From a focus on individual accountability, practitioners,
policymakers, diplomats and scholars have expanded the reach of transitional justice
to include peace, reconciliation, development, governance, legal reform, economic
reform, and women’s rights – most of which are designed to produce democratic
free market states governed by rule of law in which human rights are scrupulously
observed. It is the transformation of institutions, a component of transitional jus-
tice, which has been the most difficult goal to achieve. The idea of social repair
or social reconstruction seems intuitively to be a good idea. If a society has been
fractured by violence and war, rebuilding its infrastructure – physical, political and
 Transitional justice and social reconstruction 163

social – seems like a worthwhile endeavour. Yet, as we have seen, time and again,
elections do not bring democracy; rebuilding courthouses, providing computers,
and training court personnel do not necessarily bring rule of law. Nor does rule of
law necessarily means an end to human rights abuses. Restructuring the political
system does not always mean the end of corruption or crony capitalism. While
transitional justice programmes may lead to positive societal changes (Olsen et al.
2010), other reports raise questions about what these so-called positive effects of
transitional justice mean on the ground.
This chapter is divided into five sections: first, I examine some of the critical
perspectives on transitional justice, international norms and rule of law; second, I
look at the debate around the effects of international intervention and transitional
justice with reference to Bosnia and Herzegovina; third, I examine the role of
victims and victimhood in relation to the discipline of victimology and the con-
cept of social reconstruction; fourth, I summarize some of the studies that have
examined victim attitudes to transitional justice – in particular, trials (domestic
and international) and truth commissions; and finally I look at the association of
trauma effects and trials. In the conclusion, I explore the dilemma raised by Han-
nah Arendt (quoted above) in relation to unfulfilled expectations and the limita-
tions of unexamined assumptions.

Transitional justice, international norms and

the ‘rule of law’
The restoration of ‘rule of law’ has become the focus for those involved in the
rebuilding of societies after periods of repression, mass violence and in so-called
failed states. As legal scholar Rosa Ehrenreich Brooks describes the motivation
for this emphasis, she notes that there is a confluence of interests – human rights
advocates, business interests and security interests. Literally, millions of dollars
have gone into funding these endeavours over the past two decades but as Brooks
(2002–3, p. 2280) notes, ‘… promoting the rule of law has become a fundamen-
tally imperialist enterprise in which foreign administrators backed by large armies
govern societies that have been pronounced unready to take on the task of gov-
erning themselves’. Consequently, this legalist perspective results in a concerted
effort to adopt and implement the more procedural aspects of change such as the
writing of a new constitution, judicial reform and training of judges and pros-
ecutors, penal reform, police training and reform. Institutional change involves
the dismantling or rearrangement of state structures; this is usually directed from
above or by internationals from outside the country. Thomas Carothers of the
Carnegie Endowment for International Peace (1998) describes the difficulty in
achieving rule of law in that the formal aspects are easy to achieve; however,
putting it into practice is far more problematic. While both Brooks and Carothers
acknowledge the need for rule of law, they are realists and acknowledge that too
much has been expected of its success in rebuilding societies. Why is this?
164 Harvey M. Weinstein

The answer is clear: there exists a fundamental gap between achieving formal
structural change and the will to change among those most affected. There are many
constituencies to consider, including those in power who do not cede it willingly,
those who see new opportunities for personal gain and those who see themselves
as powerless to influence the policies that might improve their opportunities and
freedoms. The law functions because a society’s values espouse the protections that
rule of law can offer. As Brooks (2002–3, p. 2285) notes, ‘… creating the rule of law
is most fundamentally an issue of norm creation’. And further,‘… the rule of law is
a culture, yet the human-rights-law and foreign-policy communities know very little
– and manifest little curiosity – about the complex processes by which cultures are
created and changed’. Rosemary Nagy (2008, p. 278) touches on similar points in a
critical reflection on transitional justice by emphasizing that transitional justice ‘has
been heavily influenced by that “international legalist paradigm”, which focuses on
generating elite and mass compliance with international humanitarian norms’.
There are two potential problems here: first, that externally imposed solutions
based on values that differ from those that underpin a society’s attitudes, behaviours
and history will be extremely difficult to implement; second, that the focus of tran-
sitional justice on retributive approaches narrows the lens to that of perpetrators and
victims; to guilt and innocence of individuals and away from the social norms and
policies that allowed human rights abuses to develop and be sustained. The idea of
transition further reinforces the idea of ‘now’ and ‘then’ (Nagy 2008, p. 280) and
ignores societal continuities that are a far greater challenge to influence. Carothers
(2002) raises the critical question of whether the idea of transition is even viable or
useful and suggests that it is time to end the ‘transition paradigm’. Bronwyn Leebaw
(2011) in her analysis of two approaches – human rights legalism and restorative
justice – notes how they share the premise that the crime represents a deviation from
community norms and thus the focus on individual victims and perpetrators is rea-
sonable. However, this leads to a depoliticization of transitional justice. That is, the
legalistic focus tends to downplay the systematic or ingrained societal contributions
to the history of abuse. While holding perpetrators accountable has value, of course,
an opportunity to influence the character of a society, i.e. norm change, may be lost.
I suggest in this chapter that the influence of rule of law is overplayed and that
both the huge sums of money spent as well as the timing and processes of imple-
mentation are based more on assumptions than evidence. As Brooks (2002–3, p.
2298) notes, in quoting the work of social psychologist Tom Tyler and criminol-
ogist Raymond Paternoster ‘moral beliefs were more central to decisions about
whether to break the law than assessments of the likelihood and seriousness of pun-
ishment’. Again, societal values come into play: ‘… when people already believe
law matters, it will matter; when people think law doesn’t matter, it never can, and
it is unclear how to go from the latter state to the former’ (p. 2301). While common
belief holds that law prevents violence, Brooks presents a cogent argument that this
is only true when a society has collectively accepted that rule of law represents its
shared values. If this is so, then the challenge is how to inculcate these beliefs in a
society where repression, violence and mass atrocity permeate its history.
 Transitional justice and social reconstruction 165

David Gray (2010, p. 55) examines these issues from the perspective that
transitional justice is ‘extraordinary justice’ and that ‘what distinguishes pre-
transitional abuses from ordinary crime is the role played by an abusive para-
digm’. He defines this as ‘a combination of social norms, law, and institu-
tional practice that utilizes a bipolar logic to justify targeted violence’. That
is, it reflects a societal definition of who is in and who is out. This paradigm
emerges when there is a collapse of ‘the overlapping network of associations
and oppositions that restricts violence and violent impulses in stable regimes’.
The task then is to reconstitute this network and the question is how transitional
justice processes can contribute to this process of social reconstruction. Ordi-
nary criminal justice – individual victims and perpetrators – in domestic court-
rooms, usually does not address these kinds of questions. If the end result of
the abusive paradigm is that members of the ostracized or excluded group lose
their full privileges of participation in society’s institutions, then transitional
justice must include measures to restore them to full membership in the com-
munity and be recognized for their loss of status. This implies societal change
with attention to social and economic rights and distributive justice.
The characteristic focus of transitional justice processes has been either exclu-
sively or primarily on violations of civil and political rights. However, consider
the argument of Louise Arbour, then UN High Commissioner for Human Rights
(Arbour 2006, pp. 4–5):

Given transitional justice’s additional objective of bringing about social trans-

formation that will prevent a resurgence of conflict, (it is perhaps) even more
effective to attack the sources of legitimate grievances that, if unaddressed,
are likely to fuel the next conflagration.

She further highlights the tension between a focus on the individual and an appro-
priate response to the collective. ‘We need to be clear,’ she states, ‘that reparations
to individual victims will never substitute for more broad based and longer term
socio-economic policies that aim to address and prevent widespread inequalities
and discrimination’ (p. 12). While acknowledging the needs of those who have
suffered, High Commissioner Arbour recognized that social transformation of a
society is fundamental to social reconstruction – not secondary and not left to oth-
ers to achieve but part and parcel of the transitional justice response.

Transitional justice on the ground – Bosnia and

Herzegovina in 2011
Given the questions raised about the limits of retributive justice and the need for
change in social norms to achieve long-term social reconstruction, it is instruc-
tive to examine the impact of transitional justice in Bosnia-Herzegovina, with an
almost twenty-year history of exposure to the work of the International Crimi-
nal Tribunal for the Former Yugoslavia (ICTY) and the War Crimes Chamber
166 Harvey M. Weinstein

in the Criminal Division of the State Court. In both cases, retributive justice is
the model. The concept paper prepared for the ICTY Global Legacy Conference
(November 2011) details its achievements: the conference goal was to ‘explore
the impact of the Tribunal’s work on international humanitarian law and inter-
national criminal procedure as well as the potential of its jurisprudence to shape
the future of global justice and the advancement of human rights’ (Introduction).
Its focus, many would say appropriately, was on its legacy in advancing jurispru-
dence in this area.
Missing in the concept paper is an examination of the legacy of the ICTY with
respect to the social reconstruction of Bosnia-Herzegovina. If social transforma-
tion does in fact require change in societal norms, then it seems unreasonable to
expect any court to achieve this goal. However, given the context in which the
Court was established and the expectations raised for its contributions to peace
and reconciliation, we should, some twenty years later, offer a perspective on
whether the court has contributed or influenced change in that direction. What
we find is that, despite differences in research methodologies and disciplinary
proclivities, the contribution of transitional justice is not straightforward. Further,
given the important dimension of time, it is exceedingly difficult to parse out the
influence of transitional justice from the conflating factors of security, refugee
return, peace and cross-ethnic coexistence.
Legal scholar Diane Orentlicher’s important study of the impact of the ICTY
in Bosnia reaffirms the complexity of social transformation and the difficulty in
assessing how much an international tribunal has influenced that process. She writes
(Orentlicher 2010, p. 19) that Bosnia has ‘seen only limited progress’ towards the
goal of seeing the ICTY influence war criminals, bystanders and beneficiaries to
acknowledge their roles, condemn the crimes and express remorse. As the Berkeley
Human Rights Centre found in its 2000 and 2002 surveys (Stover and Weinstein
2004), she reports that ‘leaders of all three major ethnic groups have treated con-
victed war criminals from their own ethnic group as war heroes. And most Bosnians
experience justice through an ethnic lens’. However, she further notes ‘many Bos-
nians believe that the ICTY’s unassailable conclusions are a form of justice in them-
selves’. This is a critical finding in that it may reflect both the strength and weakness
of an international tribunal. Orentlicher (2010, p. 99) writes:

While many of our interlocutors in Bosnia are discouraged that ‘three ver-
sions of the truth’ persist fourteen years after Dayton, we did not interview
anyone who concluded that the ICTY was for that reason a failure. Instead,
many believe that disappointments in this regard make the Tribunal’s role in
establishing facts all the more important.

Although the Berkeley group found that over a two-year period these attitudes
changed for some, the fact they persist so many years later suggests that the con-
tribution of the law to attitude change is considerably less than one might hope.
 Transitional justice and social reconstruction 167

Several practitioners and scholars have advanced a more optimistic view of

Bosnia’s success as a socially transformed state. Political analyst Gerald Knaus
frames the successes as the ‘return of over one million persons and refugees
throughout all of Bosnia… the large-scale restitution of assets … (and) the almost
complete demilitarization of post war Bosnia’ (Stewart and Knaus 2011, p. 119).
Bosnians do live together with no serious inter-ethnic violence; there has been
some school integration and a multi-ethnic police force. Knaus suggests that the
establishment of the ICTY was a critical factor in Bosnia’s success, although he
situates it in the midst of a remarkable number of other factors that could just as
easily account for the changes. Political scientist Lara Nettelfield (2010a, p. 15)
also argues that the ICTY ‘contributed to positive democratic development inside
Bosnia… because it played a role in the creation of new post war identities based
on rule of law and participation’. She suggests that it changed narratives about the
past, promoted positive attitudes towards justice and accountability, and promoted
an important growth in civil society.2 Her study on attitudes towards the ICTY
among soldiers of the Armed Forces of Bosnia and Herzegovina (BiH) (Nettelf-
ield 2010b) suggests that many believed the Court had contributed to aspects of
democratization, although Bosnian Serbs were less positive on most of the vari-
ables, such as whether the ICTY was a credible institution. There was, however,
agreement on the question of whether those who commit war crimes should be
brought to justice – a finding replicated by other studies.
And yet, is this the whole picture? Other writers find the situation to be far
more complex on the ground, in the lived existence of those who confront
the aftermath of the conflict more than fifteen years post-Dayton.3 Political
scientist Janine Natalya Clark (2009, p. 464) in a large qualitative study of
‘ordinary’ people found that none of the claims made by many who supported
the establishment of the ICTY – that it would reduce the need for revenge,
individualize guilt, establish a historical record and promote reconciliation
– were supported by the interviews except perhaps, the first, where there is
evidence for criminal justice as the most acceptable response to war crimes
and crimes against humanity. The question of ‘whose truth?’ persists, as does
denial and an ethnic lens in war narratives. She notes (Clark 2009, p. 475) that:
‘what exists is a negative rather than a positive peace. It is peace “only as the
absence of war” and not peace as the “harmonious ordering of differences”.
Extreme mistrust persists.’
Other studies suggest that Bosnian attitudes towards war crimes trials are
ambivalent at best. Journalist and former spokesperson for the ICTY and the Out-
reach Section of the Court of BiH, Refik Hodzic, completed an interview study
of victims’ perspectives of war crimes trials in the municipality of Prijedor in the
Republika Srpska where mass killings, rapes, torture, concentration camps and
ethnic cleansing stained the history of the town forever. This rich compilation
of victim narratives reveals great disappointment and frustrated expectations for
what legal justice might have brought. Hodzic (2010, p. 118) writes:
168 Harvey M. Weinstein

… victims today do not have great – or in many cases any – expectations that
war crimes trials will bring, or are capable of bringing, about the transforma-
tion of the social environment in which they live… most victims appear to
have gone full circle from the trauma of the crimes committed against them,
through the hope and high expectations of comprehensive justice, and, ulti-
mately, to resignation and apathy that have arisen in part from disappointed
expectations.

Victims, victimology and social reconstruction

The United Nations 1985 Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power raises two concerns in its conception and word-
ing. First, its introduction states ‘Cognizant that millions of people throughout
the world suffer harm as a result of crime and abuse of power…’. This phrasing
that lumps together ordinary crimes and abuse of power masks the very different
problems that must be addressed when that abuse is promulgated by the state.
Second, the Declaration notes that it ‘… is designed to assist Governments (and
the international community)’. While it encourages states to legislate against
human rights abuse, prohibits such practices as secret places of detention and
encourages states to develop channels for victims to communicate, much of the
Declaration is focused on criminal justice and does not lay out in the same detail
the measures needed to acknowledge the needs of those who have been abused
by state practices or indeed, non-state actors in a situation of mass violence
or conflict.
The Declaration, which often is cited in the victimology literature, reinforces
my view that victimology as a field has not focused sufficiently on those who
are the recipients of human rights abuse. The 2005 Basic Principles on the Right
to a Remedy and Reparations for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law
addressed the omission of more specific guidelines to state abuse. However, with
its focus on violations of international human rights and international humani-
tarian law, the legal paradigm became firmly entrenched in how states and the
international community should respond to these violations. In these so-called
van Boven-Bassiouni Principles, issues of social repair are limited to institutional
transformation defined in such terms as the courts, the military, intelligence serv-
ices, protection for certain professions, etc. The larger questions of distributive
justice are ignored.
It would seem then that, just as conceptions of international criminal justice
have emerged out of the idea of ‘ordinary justice’, views of how to respond to
survivors of mass violence mimic the responses to ‘ordinary crime’, i.e. a legal
response. Historically, the field of victimology has embraced this perspective.
Criminologist Ezzat Fattah (2000, p. 18) defines victimology as ‘the scientific
study of crime victims’. He describes the evolution of victimology in four impor-
tant areas – first, data gathering; second, legislation to promote victim rights;
 Transitional justice and social reconstruction 169

third, state compensation, offender restitution and victim–offender mediation

programmes; and finally, a widespread though variable growth in victim services
including psychotherapy. There is debate in the field about whether victimology
has been sidetracked into an advocacy role (Cressey 1992; Elias 1994). Of even
more concern is the question of whether this advocacy position has, in Fattah’s
words (2000, p. 25), ‘helped to reinforce primitive vengeful reactions to crime
and provided much needed ammunition to conservative politicians thus enabling
them to implement their punitive agenda’. One example of this would be Cali-
fornia’s ‘Three Strikes’ law.4 Elias (1994, p. 5) reinforces this view by asking
whether the field is too heavily influenced by a law-and-order mentality or ‘right
realism’. From this perspective, crimes result from ‘individual choices, not social
conditions’. This belief echoes the views of those who see transitional justice
primarily in terms of holding individuals accountable and paying less attention
to the economic, social and cultural factors that usually underlie the repression
or mass conflict that led to human rights abuses.
The retributive justice view is based partially on the idea that victims want jus-
tice and that the legal system is established to channel individual acts of vengeance
into a system where the state supplies the remedy. But do we know what victims
want or only what some of them want? And how much are attitudes determined
by societal expectations influenced both politically and by media representations?
Elias offers both case studies and other documentation to suggest that revenge
and punishment may not be the most desired outcome for many victims. The New
Zealand Department of Justice in a 1996 report finds that crime victims ‘are no
more punitive than non-victims’ (Ch. 4.2) They quote Boers and Sessar (1991)
who found in a quantitative study in Germany that ordinary people accepted resti-
tution instead of punishment for hypothetical minor crimes. This was not the case
for legal professionals. The New Zealand report recapitulates these findings.
Another dimension to how victims are viewed lies in the social construction of
‘victimhood’ and the societal elements that have converged to sustain the notion
of the passive, helpless victim who requires legal intervention, political advocacy
and punishment of victimizers. The process is similar to that described by psychia-
trist Arthur Kleinman (quoted in Shoeb 2006, p. 6) who argued that survivors of
traumatic experience must exchange stories of trauma for ‘physical resources at
their new place of refuge’. Victimologist Jan Van Dijk (2009) describes the bargain
that takes place between society and those who have been victimized: in return for
acknowledgement and various forms of support, victims will forsake their right
to revenge. In his study of victims, he describes three themes that emerge from
their narratives. These themes include manifestations of resilience, core feelings
of anger and revenge fantasies, and post-traumatic altruism – the desire to chan-
nel their responses into positive interventions on behalf of those who have been
victimized. However, society does not appear to accept these emerging strengths
or any evidence of autonomy. Surprisingly, what often is seen is what Van Dijk
(2009, p. 18) terms ‘reactive victim scapegoating’ – the victim is rejected if the
dependent role is not acted out. Rather than building upon these core strengths
170 Harvey M. Weinstein

and using the residual anger as a motivation, Western society turns victims into
traumatized patients who require trauma treatment and a traumatic therapeutic vic-
timology that leads to retributive punishment. As we will see, for survivors of mass
violence, this approach often leads to significant disappointment. The victimol-
ogy approach may, in fact, reinforce an essentialized notion of victimhood, often
stripping them of any sense of agency – labelled a victim, living a new identity
and trapped in the past.5 Nils Christie (2010) also cautions about the untoward
consequences of this approach and Fattah (2000, p. 38) is even more vehement:
‘… victimization is a normal and natural occurrence, a fact of life’. It should not be
portrayed ‘as a pathological and abnormal phenomenon’. Further, he argues that:

the victim lobby has adamantly rejected any claim, even when supported by
irrefutable evidence, that the roles of victim and victimizer are interchange-
able and that much violence is the outcome of dynamic and explosive inter-
actions rather than deliberate and unilateral actions of a flawed perpetrator’s
personality.

However, legal justice holds individuals accountable. There are perpetrators and
there are victims. In mass violence, the line between the two is frequently blurred
– perhaps, even more so than in ordinary crimes but the legal process follows the
same route.
Thus we see a confluence of several movements – the victims’ rights lobby, the
therapist-trauma lobby and those who believe in the need and primacy of legal
justice. The untoward consequences of the labelling of victims and the stripping
away of their sense of efficacy are not usually considered.
In the rebuilding of states after mass violence and human rights abuses, a
critical dilemma has emerged. If there is an emphasis on individual acts – usu-
ally of those in command positions – most of those who acted to inflict suffer-
ing will return to their homes and neighbourhoods and live among those who
were victimized. Secondly, if the emphasis is primarily on punishment, will that
be sufficient for victims? If as a consequence of trial decisions or truth com-
missions or peace treaties the idea of reparations or restitution for victims is
promoted, then we must confront such questions as: What kinds of reparations?
To whom should they go? Should they be symbolic or material? Should they
be directed at individual victims and their families or should they be offered
to victimized communities? These questions have important implications for
transitional justice and the rebuilding of destroyed societies, especially if there
is a goal of societal norm change – an objective that presents a challenge not
only for retributive justice but also for the other mechanisms of transitional
justice. We then must ask the question of what those victimized want after their
homes have been destroyed, their loved ones missing, maimed or killed, their
communities (physical and social) laid waste, and their futures, often in refugee
camps or other countries, in doubt? We have a veritable army of ‘experts’ across
fields as diverse as psychology, development, law, political science, diplomacy,
 Transitional justice and social reconstruction 171

military strategy, humanitarian assistance – but in all these, do the voices of

those most affected receive a reasonable hearing?

Victims’ attitudes towards transitional justice

The dilemma of how to assess the needs of survivors of mass violence confronts
transitional justice researchers with the strengths and limitations of different
data-gathering methodologies. Policymakers can base decisions on the tradi-
tional process of interviewing survivors or witnesses, a method followed by
most human rights organizations and indeed, the method used in crime inves-
tigation, or they can develop population-based surveys that may offer a wider
base of information.
Beginning in 1999 in the countries of the former Yugoslavia and Rwanda, the
Human Rights Centre at the University of California, Berkeley initiated epidemi-
ological surveys across randomly selected populations in an attempt to elucidate
systemic patterns of human rights abuses as well as attitudes and beliefs about
justice and reconciliation (Pham et al. 2004; Stover and Weinstein 2004; Pham
et al. 2005; Pham et al. 2007; Vinck et al. 2008; Pham et al. 2009; Vinck et al.
2009; Pham and Vinck 2010; Vinck et al. 2011 ). As we have described elsewhere
(Weinstein et al. 2010, p. 38), surveys allow us to

examine broad patterns of experiences, attitudes and responses across geo-

graphic and socioeconomic boundaries; second, to look at the influence of
demographic differences; third, to look at important associations of factors
that may influence attitudes; and finally, to minimize biases that that may
distort our understanding of events by random selection of respondents.

Over the next decade, these studies were implemented in Uganda, the Democratic
Republic of Congo, Central African Republic, Cambodia and Liberia. While I
focus here on the survey work, we also have employed qualitative methods such
as interviews, focus groups and ethnographic studies, e.g. in Iraq shortly after
the invasion where an interview study of a ‘representative’ sample was our most
reasonable option (International Centre for Transitional Justice and Human Rights
Centre 2004). Our studies suggest that multiple types of data-gathering methods
will assure the most valid information on these attitudes.
While these surveys have examined attitudes towards justice, reconciliation, need
for services, ethnic distance and other attitudes, in this chapter I focus specifically
on how these survivors view the place of justice in social reconstruction. A review of
the Human Rights Centre studies over the past decade6 suggests that one cannot take
for granted that all victims want legal justice. A great many factors are associated
with these attitudes, such as exposure to trauma, socioeconomic status and educa-
tion, prior life experience with members of the opposing group, belief in the national
judicial system, knowledge of the international system of criminal justice, security
status, cultural beliefs and practices and group identity. The responses may vary also
172 Harvey M. Weinstein

with how a question is asked and the interpretation of findings needs to take this into
account. For example, if the question is asked about what are the important priori-
ties after mass violence, very few people choose justice. Thus, in Northern Uganda
in 2005, less than 1 per cent of the sampled population reported that justice was an
immediate need or concern (as opposed to peace at 31 per cent and food at 33 per
cent). An interesting finding that emerged from the 2005 Uganda study was that
those respondents who reported symptoms of post-traumatic stress disorder (PTSD)
and depression were more likely to favour violent over nonviolent means to end the
conflict. This may lend credence to Van Dijk’s notion of the role of anger in those
who have been victimized but raises concerns about how victims might perceive
judicial mechanisms in which they are primarily observers or witnesses.
In a repeat survey in 2007, only 3 per cent listed justice as the top priority.
However, if questions are asked specifically about accountability, over two-thirds
of respondents believed it important to hold accountable those who committed
violence. When asked which mechanisms would be most appropriate 29 per cent
chose the International Criminal Court and 28 per cent the Ugandan courts. How-
ever, 20 per cent chose amnesties. To further complicate our understanding, when
asked about how to prevent further conflict, 33 per cent of respondents chose the
option of pardoning the leaders of the Lord’s Resistance Army (LRA) and 20 per
cent suggested forgiveness of the LRA leaders. Only 9 per cent selected account-
ability. In 2005, when asked whether they would accept amnesty if that were the
road to peace, overall support was 71 per cent. Responses to these kinds of ques-
tions varied with geographic location, ethnic group and exposure to trauma but
not always in the expected direction e.g. those who had been exposed to at least
one of eleven traumatic events were more likely to support amnesty. In a third
study in 2010 after the violence had subsided and displaced people were returning
to the homes, priorities were food, agricultural assistance, education and health.
The percentage who saw accountability and the need for trials as a high priority
had dropped to 10 per cent or less. A 2008 study in Eastern Democratic Republic
of Congo also found that when peace and security have not been achieved and
basic needs are not met, only 2 per cent listed justice as a priority, 2 per cent priori-
tized arrests of perpetrators and 1 per cent described punishment as an important
immediate action. Only 10 per cent thought that justice should be a priority for
the government. However, as we have seen elsewhere, when asked specifically
about accountability, more than 80 per cent of respondents felt it important to hold
perpetrators accountable and an equal percentage saw accountability as necessary
for peace. Similar findings were found in the Central African Republic, Liberia
and Cambodia.
Other scholars have utilized surveys to unpack attitudes towards transitional
justice. Their findings illustrate how our assumptions do not lead to clear-cut con-
clusions. Political scientists David Backer and Anu Kulkarni examined attitudes
towards amnesty in five African countries and found that the majority of the vic-
tims supported amnesties (Backer 2009). This was associated with awareness that
prosecutions would be problematic for the stability and peace in the state. Most
 Transitional justice and social reconstruction 173

felt that amnesties were unfair but were willing to accept limited amnesties if
perpetrators performed actions related to restorative justice e.g. apologies or truth.
Given the prevailing norm that amnesty provisions reinforce impunity and under-
mine rule of law, these finding are striking.
Finally, in Burundi, political scientist Cyrus Samii (2010) carried out another
examination of transitional justice. In this 2007 survey, Samii found that in an eth-
nically divided society after peace was declared and before any transitional justice
measures were instituted, support for retributive justice and punishment as well
as truth-seeking appears to be lower than expected by policymakers, legal schol-
ars and diplomats. The most common preference was for conditional forgiveness
associated with a preference to forget the past. Samii suggests that political gain
may be sufficient compensation for those who have been previously abused lead-
ing to avoidance of mechanisms designed to seek truth or punishment that might
undermine those gains. His conclusions raise questions about the widely held
assumptions of what victims want.
In summary, these quantitative studies indicate that the international community
cannot continue to assume that current transitional justice mechanisms – trials and
truth commissions in particular – lead clearly and unambiguously to a satisfactory
response to the needs of those who have suffered. All the studies find that victim
attitudes vary as a function of geography and war exposure, ethnic group iden-
tity, education, trauma, political pressures, historical context, and cultural ways
of dealing with conflict and trauma especially place-based mechanisms, socio-
economic needs and security concerns. Context is critical.
Two books (Hinton 2010; Shaw et al. 2010) illustrate the value of deep qualita-
tive analysis in piecing together the pieces of the puzzle to understand victim needs,
by offering anthropological perspectives on transitional justice and local cultures
in many countries across the world such as Peru, Guatemala, Burundi, Uganda
and Timor Leste. Many use what Tim Kelsall (2009, p. 19) calls an ‘anthropo-
litical perspective’ to analyse these local perceptions and effects. Cyrus Samii’s
quantitative findings in Burundi are substantiated by the qualitative study of Nee
and Uvin in Burundi (Shaw et al. 2010). They draw on three sources of data – a
2006 interview study on attitudes towards justice and reconciliation among 53
individuals in two communes selected for different trajectories of social recon-
struction; a more open-ended study of 152 individuals in the same communes;
and finally, another open-ended, nine-month study that included 238 interviews
in these communes plus additional sites. Their overall finding is that the major-
ity of Burundians across ethnic groups prefer to be silent – to forget. Most (with
the exception of those in a large refugee camp years after peace was declared)
have little desire for prosecutions or a truth commission. There appears to be little
faith in judicial responses to injustice coinciding with a societal norm of letting-
go and forgetting as a survival mechanism. As noted in the surveys previously
described, Burundians appear to value security more than justice. Nee and Uvin
(2010, p. 181) report that their study refutes the dominant assumption made by
those who advocate transitional justice – ‘that “the people” want western style
174 Harvey M. Weinstein

justice’ but are blocked by the elites. These findings corroborate those of Samii,
who used a very different methodology and illustrated the value of combined
methods in assessing victim needs.

Trauma, therapeutic justice, therapeutic

victimology and social reconstruction
Fattah (2000, p. 41) decries the dangers of so-called ‘victim therapy’ and predicts
its demise. He critiques the ‘huge army of therapists’ and suggests that the natu-
ral healing powers of human beings are obviated by these treatments. As I have
described, the subjective experience of a victimhood mentality and the process of
societal labelling often converge to change social identity from that of an active
participant with agency to that of passive, dependent and helpless sufferer. Thus,
trauma therapists constitute another advocacy group that influences how victims
are seen and I argue that this emphasis on trauma with its individual focus inhibits
social reconstruction.
In order for social reconstruction of a post-conflict society to occur, there clearly
needs to be some shift in how individuals, communities and formerly warring
groups perceive each other. Further, in order for social bonds to be constructed, a
process for rehumanizing the stereotyped ‘others’ must be put into place (Kelman
1973; Halpern and Weinstein 2004). What this process is, or whether any out-
side or superimposed mechanism can be effective in influencing its rate or depth
remains an open question. I suggest, however, that the disproportionate empha-
sis on legal and truth-seeking mechanisms that primarily are backward-looking
and have characterized the response of the international community over the past
twenty-five years may be steering us away from more localized, culture-congru-
ent measures that may be less retributive and forward-directed. I argue here that
the emphasis on responding to individual acts of violence and holding individuals
accountable is a narrow perspective that limits the opportunities for social repair.
Further, the universal prescriptions of international law promoted by the human
rights community may be neither understood nor appreciated by those affected
by violence (Kelsall 2009). While I support the idea that victims should receive
reparations, the nature of those and the level at which such reparations should be
directed – individual or community, tangible or symbolic, monetary or facilitative
of autonomy and independence – exemplifies a concern that directly implicates
the area of victimology.
Joan and Arthur Kleinman have challenged our conceptions of human suf-
fering by describing how our affection for trauma narratives reduces ‘compli-
cated stories, based in real events... to a core cultural image of victimization’
(Kleinman and Kleinman 1996, p. 9). They focus on how the medical profes-
sion transforms social experience into disease pathology. They note further: ‘The
person who undergoes torture first becomes a victim, an image of innocence
and passivity, who cannot represent himself, who must be represented.’ For
medical professionals this representation comes in the form of a disease to be
 Transitional justice and social reconstruction 175

treated – post-traumatic stress disorder (PTSD). While I cannot in this chapter

explore the vagaries of the debates both within the professions of psychiatry
and psychology and between disciplines (e.g. anthropology and the therapeutic
professions) about the validity of the PTSD diagnosis (Young 1995; Spitzer et al.
2008), my concern here is on how the concept of victimization is used in ways
that may inhibit the processes of rehumanization and social repair in post-con-
flict societies. Here the appropriation of ‘representation’ occurs when legal pro-
fessionals and the human rights community translate social suffering into a tort
or crime that demands restitution or reparation. Lost in translation are the issues
of distributive justice – the social, economic and cultural rights concerns – that
may underlie the events that led to repression and/or violence. The word ‘social’
has an important meaning in considering social suffering and suggests that a
broader lens on what constitutes social suffering and how to alleviate its effects
requires attention to social forms of intervention. The focus on war crimes and
crimes against humanity, while obviously of great import, may do very little to
allow people to move beyond their societally sanctioned roles as victims. In fact,
the process may have the untoward consequence of leaving them stuck – mired in
the passive, dependent role of supplicant. As Kleinman (1997, p. 319) notes: ‘this
process of appropriation silences the collective authenticity of their own voices
and denies their agency while redefining their needs away from demand for basic
reforms of fundamental rights’. And what of truth commissions – are they not
established to give voice to victims? I suggest that here as well, appropriation
occurs, sometimes by government, sometimes by the international community,
often by non-governmental organizations. The politics of transitional justice
reflect powerful incentives on the part of its participants. Those incentives may
not always be in the best interests of those who have suffered.
Didier Fassin (2009) in his exploration of ‘the empire of trauma’ describes how
the focus on trauma actually obliterates lived experiences, especially in terms of what
preceded the traumatic event (e.g. state oppression or the effects of extreme poverty).
The simplistic condensation of the concept may obscure the realities of what the
individual has experienced but may still be used by sufferers as a way of gaining a
tangible form of acknowledgement that is socially supported. Thus, society makes
judgements about who is the legitimate victim based on a variety of factors such as
the validity of the claim, their social group, etc. This leads to some differentiation
in how the idea of trauma is used, such as to argue for compensation or reparations
or to find the truth as in truth commissions or court testimony and finally, for certi-
fication as in UN status as a refugee. In a post-conflict situation, where the roles of
victim and perpetrator are so often blurred, some will be seen as the real suffers of
trauma, others not. We constantly make these decisions that then send the sufferer
on one path or another. As Kleinman (1997, p. 321) points out, social suffering ‘…
is a professional discourse that organizes forms of suffering into as bureaucratic cat-
egories and objects of technical intervention’. He then elaborates: ‘… suffering is
social, not only because social force breaks networks and bodies but also because
176 Harvey M. Weinstein

social institutions respond with assistance to certain categories of sufferers while

denying others or treating them with bureaucratic indifference’. These concerns are
applicable in evaluating the contribution of transitional justice interventions to the
rebuilding of societies – a social goal.
One additional assumption underlies the concept of therapeutic justice and what
I term, therapeutic victimology. It is often stated that trials bring relief to victims,
and that combating impunity is a necessary precondition for victims and thus,
communities to ‘heal’. Psychiatrist Metin Basoglu and colleagues, in a matched
control group study of some 1,300 survivors of wartime atrocities in ex-Yugosla-
via, found no evidence for this claim. They (Basoglu et al. 2005, p. 580) found
that ‘PTSD and depression in war survivors appear to be independent of sense of
injustice arising from perceived lack of redress for trauma’. Further, they found
that insecurity and loss of control over their lives were more closely associated
with these symptoms. Therefore they note that if impunity is defined as leading
to ongoing threat, then retributive justice might be seen as helpful at the level of
community. Basoglu (2011) later clarified these findings:

… various other forms of redress, such as investigation of human rights viola-

tions, punishment of perpetrators, disclosure of the truth, public recognition
of crimes…, public apology by the State, … monetary and non-monetary
compensation, restitution, and satisfaction are not likely to facilitate recovery
from trauma in the absence of (specific)… psychological interventions.

Most survivors prefer interventions that restore social and economic recovery.
However, Basoglu notes that for those with psychological symptoms, there is very
little evidence for the effectiveness of most treatments for torture rehabilitation
other than those designed to restore control over their lives to those affected. His
studies cast doubt on the therapeutic justice model and raise questions about the
generalizability of the therapeutic victimology model as well.

Conclusion
There are many stakeholders in the domestic and international arenas that firmly
believe that they know how to respond when societies deconstruct. The agenda
for post-conflict response has been set primarily at the international level by dip-
lomats, political scientists, legal scholars and practitioners, military strategists,
international non-governmental organizations, human rights groups, victim advo-
cates and victims’ rights groups. Still we see no definitive roadway that delineates
the steps that might be helpful.
In this chapter, I have argued that context is critical; that transitional justice is
limited in its capacity to promote social reconstruction; that those who have suffered
may be re-victimized by the very processes designed to respond to their needs; and
that the social transformation of a country requires processes that create pro-social
 Transitional justice and social reconstruction 177

norms and values.7 Transitional justice, as currently understood, does not address
those processes. Indeed, many would say that it should not.
It is not my purpose to denigrate the role that transitional justice – in particular,
trials and truth commissions – can play in the rebuilding of fractured societies.
Each of the traditional components of transitional justice may in concert offer
some steps towards coexistence and stability. However, I do question the claims
made for the effectiveness of each one and for the larger claims that suggest they
lead to reconciliation, closure and the development of new and peaceful societal
norms. Further, the assumptions that establishing rule of law (based on a West-
ern view), as the primary step that will lead to all good things to follow has not
been demonstrated conclusively. The drive to combat impunity through retribu-
tive justice also does not bear up under scrutiny. Just as the death penalty has not
been shown to end homicide so are there no data to support the notion that trials
decrease the likelihood of the next ethnic cleansing or genocide. What trials can
do is to institutionalize a society’s values of what behaviours will be acceptable.
We are left, however, with the question of whether the universalization of the
human rights regime generalizes a view of how to respond to behaviour that is
based on assumptions that are not relevant in all societies.
The value of truth commissions may be contextually related as well. Not all
societies want to remember and, as Shaw (2005, p. 1) has pointed out in Sierra
Leone, not all societies want to articulate their experiences verbally and in public,
preferring instead a ‘forgive and forget’ approach. Other components of transi-
tional justice such as memorialization or lustration may have consequences when
used for political gain or manipulation. My focus in this chapter is on untoward
consequences – the ‘side-effects’ of direct intervention.
I have suggested then that retributive justice with its focus on individual per-
petrators may undermine the drive towards social stability. As we have seen in
the case of Bosnia, there has been little in the way of social reconstruction at
the local level. The transformation of social norms remains the most significant
challenge in post-conflict societies. We need to utilize what is known about norm
creation at a population level in order to achieve this kind of change. Understand-
ing and working within local cultures in collaboration with those affected is a first
step. The gap between the establishment of democratic structures and democratic
beliefs and behaviours can be very wide. The question remains as to whether a
society prefers democracy with all its messiness or chooses a kind of order that
may feel more secure but is associated with some constraints on its freedoms.
How open is the global community to variation in justice and governance?
Further, I raise concerns about how those affected by mass violence may find
themselves at the mercy of well-meaning advocates who espouse different strate-
gies for ‘healing’ their pain. Both victimology and transitional justice practitioners
have developed approaches that purport to provide justice, acknowledgement and
treatment for victims which, it is hypothesized, then contribute to the rebuild-
ing of fractured societies. These approaches often lead to untoward consequences
such as the development of a ‘victimization’ identity characterized by passivity
178 Harvey M. Weinstein

and dependence and disappointed survivors of conflict who become disillusioned

by the inability of judicial mechanisms to punish sufficient numbers of perpetra-
tors or that offer plea bargains or short sentences. While there is some evidence
at a state level that combinations of trials, amnesties, and truth commissions (a
‘justice balance’) can lead to stronger democracies and human rights protections
after repression and mass violence (Olsen et al. 2010), this chapter addresses the
more immediate effects of these mechanisms at the level of individuals, com-
munities and the quotidian nature of social reconstruction. I do not argue against
these processes but caution against the conceptual creep that suggests their abil-
ity to achieve more than what they actually are capable of delivering. They are
based on assumptions that have become almost factual – sets of beliefs that are
insufficiently challenged. As Hannah Arendt describes in the quotation that began
this chapter, ‘the purely speculative nature of the whole enterprise in forgotten’.
Perhaps if we stand back and revisit our goals, drop preconceived notions and
listen to those most affected – in their communities, with their own language,
understandings and rituals, we will become more effective in assisting those who
have suffered while, at the same time, confront our own blind spots in theory and
practice. If those invested in peace building and social repair learn to work with
the language and in the traditions of post-conflict communities, then social trans-
formation and value change may be possible. The emphasis on universal notions,
heartily endorsed by human right groups and the United Nations, has heightened
awareness of the gap between the global and the local. This is an opportune time
to move beyond lip service and address this gap.

Notes
1 In recognition of this limitation, the International Criminal Court provides for victims
to participate in a very circumscribed manner (i.e. not as witnesses) at the discretion of
the Court. The Extraordinary Chambers in the Courts of Cambodia (ECCC) provide for
the participation of ‘civil parties’ but here as well, participation has run into difculty
and increasingly has been constrained.
2 In contrast to Netteleld, Jamie Rowen found that attempts to establish a regional com-
mission in the countries of ex-Yugoslavia through the formation of an NGO network,
the Coalition for RECOM (regional commission for truth-seeking about war crimes
and other serious human rights violations committed in the recent past), or CoRECOM,
foundered in BiH on persistent mistrust viewed through an ethnic lens that sabotaged
the process. See Rowen (2012).
3 The 1995 Dayton Accord, signed near Dayton, Ohio by the presidents of Bosnia and
Herzegovina, Croatia, and Serbia ended the 1992-95 Bosnian war by offering a General
Framework for Peace.
4 California’s draconian 1994 Three Strikes Law required that people with third felonies,
even if minor, be imprisoned for life. In 2012, a referendum modied the law to assure
that this would no longer be the case. Available at: <www.slate.com/articles/news_
and_politics/jurisprudence/2012/11/california_three_strikes_law_voters_wanted_to_
reform_the_state_s_harsh_law.html> [Accessed 17 December 2012].
5 Clarke (2009, p. 237) argues that international justice promotes the idea of victim
helplessness: ‘institutions such as the International Criminal Court actually draw their
 Transitional justice and social reconstruction 179

power from the imaginary of the victim, whose liberation is possible only through suf-
fering; the victim gure thus remains both central and marginal to the process’. She
further notes ‘… the power to end violence exists more in its construction of justice
than in its potentiality’.
6 The earliest studies in Rwanda, Uganda and the Balkans (2002–2005) were succeeded
by a series of surveys in Congo, Liberia, Central African Republic, and Cambodia, car-
ried out as part of the Initiative on Vulnerable Populations at the Human Rights Center
led by Phuong Pham and Patrick Vinck and associated colleagues. Detailed reports and
methodology can be found on the website of the Human Rights Centre at the University
of California, Berkeley at: www.hrcberkeley.edu.
7 Prosocial behaviour is a term used in psychology dened as actions that benet other
people or society as a whole (Twenge et al. 2007). Available at: http://216.22.10.76/
wiki/Prosocial_Behavior [Accessed on 4 January 2012].

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Chapter 9

Integral justice for victims

Rama Mani

Toda obscuridad contiene un punta di luz.

‘All darkness contains a point of light.’
Vera Schiller de Kohn, refugee and survivor of Nazi invasion
(Schiller de Kohn 2006, p. 28)

Introduction: treating victims as latent heroes

Victims of political violations or personal tragedy carry within themselves the
seed of the hero/heroine: they carry the potential not only to live meaningful lives
again, but also to become agents of transformation in their societies.
Generally, we associate victimisation with feelings of hopelessness and apathy.
Victims often live in constant fear that what victimised them before could happen
again, at any time; that their perpetrators may reappear on their doorstep. When
victims do not experience a full sense of justice and reintegration, some may turn
their frustration against themselves, becoming depressed and apathetic. Some
may transmit their trauma wordlessly to successive generations. Some may direct
their vengeance at others and become aggressors in their turn. They may strike
out against those they hold responsible for their plight, or, if they are powerless to
access their real or presumed perpetrators, they may oppress those around them.
In all these cases, victims are neither able to live fulfilling lives nor to give the
best of themselves to society. They get trapped in endlessly perpetuated cycles of
violence and victimisation.
Yet, in innumerable cases, victims emerge stronger from their trauma. They are
able to free themselves from their prior identities, context and stories, and uncover
unfathomed layers of their true being. There, they tap into a power greater than
themselves, and are transformed. In the depths of darkness, they find their inner
fire and become guiding lights for society.
Great leaders are born from such experiences. Such leaders highlight a different
paradigm of leadership, rooted in inner power rather than brute force (Elworthy
1996). Nelson Mandela epitomises such leadership. Rising above the expectable
feelings of revenge and score-settling that might goad them, such leaders, like
184 Rama Mani

Mandela, make inner peace with themselves, their societies and even with their
perpetrators. Simone Veil, who survived both Auschwitz and the death march to
Birkenau, became France’s first female minister of state and first woman presi-
dent of the European Parliament. She was shaped by her life-threatening experi-
ence and she remains committed to commemorating the Shoah, but is not captive
to it. She has championed diverse causes, including women’s, workers and immi-
grants’ rights, in her political and personal capacity.
Great artists are also honed by such experiences. An example is Aleksandr
Solzhenitsyn. He survived the horrors of the Soviet gulag, and found an inner
faith that enabled him to use his literary gifts to speak out against injustice in all its
forms. He highlighted the responsibility of artists towards society in his remark-
able Nobel lecture:

… the artist has merely to be more keenly aware than others of the harmony
of the world, of the beauty and ugliness of the human contribution to it, and
to communicate this acutely to his fellow-men. And in misfortune, and even
at the depths of existence – in destitution, in prison, in sickness – his sense of
stable harmony never deserts him.
(Solzhenitsyn 1970)

Such voices speak at once personally of their own suffering, collectively of fellow
victims, and universally of the human condition. They transcend their personal
pain to shape collective consciousness.
Scholars and visionaries emerge from such tribulations. Their anguish ena-
bles them to understand the kernel of suffering, penetrate the mysteries of human
nature, and discover the deeper purpose of existence. Eminent psychiatrist Victor
Frankl, who survived Nazi concentration camps, observes poignantly, ‘even the
hapless victim of a hopeless situation … may turn a personal tragedy into a tri-
umph’ (Frankl 2006, p. 146).
Simone Veil, Nelson Mandela, Aleksandr Solzhenitsyn, Victor Frankl and thou-
sands of less well-known individuals in diverse countries have transitioned from
victimisation to transformation; from nursing their wounds to nurturing human-
kind. Those who make this journey become the conscience of humankind. They
awaken victims, perpetrators and bystanders alike to higher awareness, break
vicious cycles of violence and victimisation, and sow harmony in society. Such
heroic examples proliferate throughout the world, although they are often lit-
tle known beyond their communities and spheres of influence; one such is Vera
Schiller de Kohn.
Vera Schiller de Kohn escaped Prague after the Nazi invasion with her husband
and his family, and became a refugee in Ecuador. War’s horrors and homesickness
persisted and made her depressively suicidal. At the age of forty-five, she aban-
doned her family in the hope of returning to her European homeland. By chance
this woman, a Jew, met and became the student of German psychotherapist and
Zen master Karlfried Graf Dürckheim. Over three years, her old victim identity
 Integral justice for victims 185

died as her universal Self was born.1 She returned to Quito with a new sense of
purpose, and founded the Centre for Integral Development, becoming a national
icon in Ecuador. Until her hundredth birthday in March 2012, she continued
to counsel and heal patients, direct her centre, train indigenous villagers in psy-
chology and lecture at universities in Ecuador and around the world. She died
peacefully in June 2012. Vera transformed her paralysing victimisation into an
enlightened life of contribution to humanity. She says: ‘Suffering and tragedies
are a part of life… And overcoming them is inherent to the process of growth’
(Schiller de Kohn 2006, p. 27).2
Every individual victim, whatever their cause of personal or collective victimi-
sation, is a potential Nelson Mandela or Vera Kohn. What each one needs is the
space, support and opportunity to transform. Each victim is different; his or her
individual circumstances are unlike anyone else’s. Yet, each of them can over-
come suffering and transform their victimisation to fulfil their innate potential,
as Vera did.

Two core arguments

This chapter makes two core arguments. First, an appropriate approach to vic-
timology and transitional justice must treat each ‘victim’ as an incipient ‘hero’
or ‘heroine’ in the making. That is, it must regard each victim as much more
than ‘just’ a victim, frozen in their victim identity and trapped forever in their
victimisation. Instead, it must treat each victim as a whole human being with the
inherent potential to resume a meaningful life and contribute richly to society.
Second, the kind of justice that is required to enable this ‘victim’ to make the
transition and complete the transformation from victimhood to ‘hero-hood’ is
‘Integral Justice’.
Integral justice offers a more holistic approach to the transformation of vic-
timisation than transitional justice as it is pursued today. Integral justice builds on
both the lessons of transitional justice and the findings of victimology, but also
reaches beyond these two fields to integrate the dimensions of culture, ecology
and spirituality. Each victim is unique and each one’s experience of victimisation
and journey towards healing, wholeness and reintegration will be singular and
differentiated. Yet, if victims are assisted by these two factors – a changed and
empowering attitude towards them as heroes-in-the-making, and a changed and
holistic approach to justice itself – it is much more likely that they will be able to
undertake and complete the transformation into who they really are and can be:
powerful and inspiring lights in their societies.

Genesis and expansion of transitional justice

While this chapter seeks to contribute to both the fields of victimology and transi-
tional justice (TJ), it situates itself particularly in the praxis of the latter and makes
specific reference to the experiences and lessons of TJ.
186 Rama Mani

Transitional justice emerged in the early 1990s with the paradigmatic cases
of South Africa, former Yugoslavia and Rwanda, drawing on earlier experiences
since the Second World War (Kritz 1995).3 TJ is linked to criminal justice and
prioritises accountability, but also offers other mechanisms to meet victims’ rights
(Minow 1998; Teitel 2000; Balint 2011; Schabas 2012). Truth commissions or
‘truth and reconciliation commissions’ (TRCs), are highly popular, but have both
advantages and limitations (Hayner 2001/2011; Borer 2006). Vetting to remove
egregious offenders from public service, institutional and rule of law reform, indi-
vidual and collective reparations, and commemoration, are all additional accepted
mechanisms of TJ for victims.
TJ has expanded and matured rapidly in theory and practice. TJ practitioners
have continually undertaken new experiments in the field while TJ scholars have
embarked on new avenues of research and analysis. While TJ is now accepted as
an essential element of post-conflict peacemaking and peace-building processes,
there has often been a clash between the global and local levels – between global
standards, expectations and mechanisms and local realities, needs and cultures
(Hinton 2011). Scholars have developed detailed databases to analyse transitional
justice processes in different countries and have subjected these diverse mecha-
nisms to the test to evaluate their efficacy (Olson et al. 2010). Much to their credit,
scholars have also begun to examine and evaluate self-critically the successes,
failures and lessons of transitional justice.4 Despite some shortcomings of transi-
tional justice, which we examine below, it is important to acknowledge first TJ’s
valuable contribution to victims’ rights.

Limitations of traditional criminal justice for victims

Before venturing further, it first must be clarified that the approach of integral
justice proposed here does not by any means imply abandoning the pursuit of
criminal justice; it is still essential to ensure accountability for perpetrators, and
obtaining whatever reparation can be afforded for victims. These are the hard-won
gains of international and domestic law and should not be lost or squandered. To
the degree that political will can be stretched through citizen pressure and to the
extent that financial and logistical constraints will allow them, accountability and
reparation must be pursued with determination. However, certain limitations of
criminal justice in providing justice to victims must be recognised.
First, victims’ rights and the pursuit of justice still remain subject to the whims
of politicians. Victorious political leaders ultimately decide whether or not justice
will be pursued at all, how and with what means. When political leaders or their
close allies believe they will gain from justice processes, they adopt them; when
they fear personal damage, they avoid justice processes.
Second, criminal justice is costly. Even when political elites support jus-
tice measures, the process depends on the largesse of donors. If international
funders see an interest in justice, the money is forthcoming; often it is not or
it is inadequate. Furthermore, expensive trials are conducted at the expense of
 Integral justice for victims 187

similar amounts of money being spent on reparation or assistance to victims.

Millions of dollars are spent simply working around the machinations of wily
lawyers who defend perpetrators and seek loopholes to escape justice or reduce
the severity of sentences.
Third, the judicial system and its laws, even its best-intentioned dimensions
like human rights and humanitarian law, are man-made inventions. Justice sys-
tems and laws are subject to all the fallibilities of their human creators. We have
not yet found adequate means to ‘punish’ perpetrators in ways that might enable
them to genuinely repent, reform and eschew repetition of their crimes. Even the
best national and international justice systems are victims of bureaucracy; they are
costly, slow and not entirely accessible to the powerless. Even the best penitentia-
ries are not conducive to the transformation of prisoners so that they might truly
repent, be deterred from recurrence and hope to return to society as contribut-
ing citizens. The benefit of legal processes for victims and societies is somewhat
questionable.
Fourth, even if trials or truth commissions are conducted and their outcome is
as ‘satisfactory’ as possible, this can only produce a measure of relief, but will not
in itself enable the victim to overcome trauma and live a productive, harmonious
life. Judicial remedies are useful but inadequate to effect transformation in vic-
tims. Much more is needed. Psycho-social healing has been one helpful response,
albeit inadequate due to the sheer scale of needs, especially in cases of mass vic-
timisation. A holistic approach to victims is essential.
Fifth and finally, once victims undergo transformation, they may view justice
differently. They may no longer see justice as a simplistic question of right
and wrong. They may realise that what they seek is not the incarceration and
privation of their perpetrator, but the awakening of his/her conscience to a full
awareness of the harm he/she caused. They may hope for a self-realisation that
will propel perpetrators to a process of expiation and transformation to underpin
genuine efforts to undo harm and instead serve society. Transformed victims
may then prefer means of justice that go beyond the legal remedies provided by
current judicial and penal systems and proffer deeper satisfaction.

The lacunae of ‘transitional’ justice

The profound injustices perpetrated during conflicts or periods of repression do
not cease the day the conflict officially terminates. Injustices very often precede
the outbreak of violent conflict, and long outlive their end. Transitional justice
steps in at the time of transition from war to peace, dictatorship to democracy or
repression to liberation, as an attempt to redress and reverse these injustices. TJ is
intended and designed as a short-term measure to respond to a specific need that
overwhelms the means of normal judicial procedures. However, the persistence of
historical injustices experienced by certain populations signals that TJ may often
be inadequate to break cycles of victimisation.
188 Rama Mani

The Aboriginals who arrived on the Australian continent 40,000 years ago
and preserved an unbroken oral record of their history, culture and legends and
traditions over this period are a vivid example. So too are the Native Americans
of the United States of America and Canada, the Mayas of Guatemala, the Que-
chua and other indigenous peoples of Peru, the Dalits and Adivasis of India.
These original inhabitants were progressively stripped of their lands, cultures,
languages and lifestyles; they were deprived of their power and identity. Despite
piecemeal redress undertaken by governments, such as public apologies, memo-
rials, partial restitution, reservations, quotas and enabling legislation, their
profound sense of injustice and marginalisation is still transmitted inter-genera-
tionally and continues to affect current lives. The political measures undertaken
in each case, but they do not significantly obliterate the depth of the injustice.
In South Africa, the persistent penury of black South Africans despite the suc-
cess of the TRC suggests that conventional TJ measures cannot efface injustice
and end victimisation. Many blacks still live in the same squalid huts in the same
segregated townships they were forced into by the apartheid regime. Neither the
political, legal and economic, nor the piecemeal cultural measures have succeeded
in making them feel a sense of participation and belonging within a genuinely
inclusive society. Even today, decades after the ostensible end of conflict, victims’
groups remain frozen in their victim identity, with a profound sense that their
needs and rights have been inadequately understood or met, as far afield as Israel,
Peru and South Africa.
What is missing? Why do neither politico-legal measures such as trials and
TRCs, or restitution and reservations, nor occasionally attempted social and
cultural reconciliatory measures such as memorials, fully heal the festering
wounds of injustice and help victims transcend their suffering? Many scholars
have examined some of the shortcoming of transitional justice processes (Dug-
gan 2010). Elsewhere, I have put forward my own critiques, pointing out that
the two favoured and most often implemented transitional justice mechanisms,
trials and truth commissions, tend in practice to deepen divisions between per-
petrators and victims, while transitional justice claims to seek reconciliation,
and peace-building requires civic inclusion and national unity (Mani 2007).
This is why I have argued that transitional justice, focusing on war crimes and
violations, has to be expanded to also address rule of law on the one hand and
distributive justice and development on the other (Mani 2002, 2008). I had also
proposed and developed the concept of ‘reparative justice’ as a more appropriate
expression of transitional justice, as it is more inclusive, flexible, tailor-made,
multi-pronged and culturally sensitive (Mani 2002, 2005). Restorative justice
attempted likewise to deepen the praxis of ‘transitional’ justice, but remains ‘a
deeply contested concept’, with its theorists and practitioners divided between
its ‘three different but overlapping conceptions: the encounter conception, the
reparative conception and the transformative conception (Johnstone and Van
Ness 2007).
 Integral justice for victims 189

The experience of the interim years suggests that even reparative justice and the
three-pronged approach of transitional, legal and distributive justice I had earlier
advocated, fall short, as they neither address the whole victim nor the whole social
reality they belong to. These lacunae, despite the commendable expansion of TJ
and advances of restorative justice in recent years, have brought me to the more
holistic concept of integral justice.

The integral approach to justice

Integral justice acknowledges and builds on the valuable contributions of victi-
mology and TJ. Both fields have taken giant strides in advancing victims’ rights,
especially in the past two decades, after long periods of neglect of and political
antipathy towards victims. Integral justice builds on both and goes a stage beyond.
It steps from the outside to the inside. Most approaches provide external assist-
ance to victims: meeting their physical and material deprivation, their demands
for justice and reparation, or their medical complaints. In some cases they may
respond partially to the needs for psycho-social support – a first step towards the
multiple invisible and often unstated needs of victims. What is required beyond
these externally-oriented approaches is an ‘integral’ approach that taps the tacit,
invisible and internal layers of victims’ diverse and multiple needs. This alone can
break through the shell of suffering and free the human being trapped within.
An integral approach is one that looks at the whole human being before and
long after their trauma, beyond their outer identity. It recognises and honours but
transcends the victim’s current state of disempowerment. It is not merely con-
cerned with the impact of the trauma on the victim and on filling their material
needs or meting justice for that immediate act. It is concerned with what might
happen thereafter: with the innate potential of the human being as a whole.
The integral approach depends for its insights not only on society, politics and
law, but also on culture and aesthetics, nature and spirituality. It stems from the
realisation that the only way to understand what is missing and what would make
justice whole is to start with the actual suffering that injustice imposes on its
victims and explore questions like: what do they demand overtly and what do
they crave covertly, deep within the silence of their hearts? While their immedi-
ate needs are understandably material, political and legal, their deepest unvoiced
needs are cultural, ethical, ecological and spiritual.
Integral justice is a more satisfactory response to the needs of ‘transitional’
justice generally, because it understands that the anguish caused by injustice is
experienced at several levels at once, some of which are visible, explicit and tan-
gible and some of which are invisible, inexplicit and difficult to access or assess.
Conventional transitional justice measures respond to the explicit levels, to the
articulated demands of victims, the mandate of the law and the political will of
governments. The invisible, tacit levels are often too sensitive to name, articulate
and translate into specific demands, and, therefore, remain unrecognised.
190 Rama Mani

Each layer of injustice, visible or invisible, needs to be addressed. Remedial

measures at one level may not satisfy the needs and feelings experienced at another,
deeper level. Over the passage of time, the visible layers often lose the sharpness
and prominence they had in the immediate aftermath, while the tacit layers, so long
unspoken, become more important for the victims. Yet they often remain under the
surface, because there is no accepted language to articulate them, nor the institutions
and mechanisms to respond to them. An ‘integral’ approach to justice offers a holis-
tic response to the needs of victims and societies for the injustices associated with
war, violence and all forms of oppression and tyranny by helping to make explicit
that which has so far been implicit, and thus, overlooked.

The nature and characteristics of ‘integral’ justice

The idea of an ‘integral’ approach is gaining ground in diverse fields due to
growing dissatisfaction with compartmentalised, mono-disciplinary and sectar-
ian responses. The trans-disciplinary scholar Ken Wilber (2007, pp. 17–18), who
developed the integral approach through his numerous books, explains:

An integral approach ensures that you are utilising the full range of resources
for any situation, with the greater likelihood of success… An integral approach
allows you to see both yourself and the world around you in more compre-
hensive and effective ways.

Ken Wilber’s many books, particularly Integral Vision, Integral Spirituality and Inte-
gral Psychology, build on his particular version of the integral model. The integral
approach has now burgeoned in different fields. Alexander Schieffer and Ronnie
Lessem, for example, have developed their own integral ‘four worlds’ perspective.
Their integral framework integrates the cultural perspectives of the north, south,
east, west and centre, providing an inclusive global lens. The concept and frame-
work of ‘integral justice’ I propose here does not use the frameworks proposed by
Wilber, Schieffer and Lessem, or other scholars. It simply shares their understand-
ing that for most critical issues of our time, a mono-disciplinary, technical response
will not suffice. This is particularly the case for justice after violent conflict.
An integral approach is fundamentally trans-border, trans-cultural and trans-
disciplinary. As humans we are complex beings. We are not only social or political
animals, but also emotional, cultural, psychological, spiritual, natural and physi-
cal, creative beings, with complex and changing needs and evolving levels of con-
sciousness. It is essential therefore, that justice transcends borders, penetrates and
understands cultures, and combines disciplines to provide satisfactory responses
to the injustice suffered by victims and the wounds inflicted upon society as a
whole as a consequence.
The ‘Integral’ in integral justice lends the term two defining characteristics. First
it is holistic and inter-related, such that each of the parts reinforces all the others and
the whole is more than the sum of its parts. Second, it is incremental and integrative:
 Integral justice for victims 191

Spritual

Ecological

Cultural

Societal
Polical
Legal

Figure 9.1 Dimensions of Integral Justice.

each successive dimension of justice builds upon, stretches beyond, but integrates
the previous dimensions. Nothing is lost in evolution. Each dimension incorporates
the previous ones and thus benefits from all their experience and learning. It is not
just neo-Darwinian evolution based on the ‘survival of the fittest’, that presumes
the extinction of the less fit. On the contrary, it is co-evolution, which enables the
unfolding of full potential, capacity and consciousness, so that nothing and nobody
gets ‘stuck’ at any one stage.
Integral justice comprises five deepening dimensions: the politico-legal, the
societal, the cultural, the ecological and the spiritual. It is crucial to understand
that each successive level does not deny, reduce, or in any way diminish the previ-
ous level, but rather gives it full space and expression, while embedding it within
a wider framework.
This can be envisioned two dimensionally as concentric circles where the soci-
etal, political and legal are encompassed and embedded within the wider cultural,
ecological and spiritual dimensions.
This structure of integral justice can also be envisioned three-dimensionally
as a conical iceberg, whose broad circular base unseen under the frozen waters
is the spiritual and whose successive levels rise up, above the subterranean
level, to expose the visible dimensions of societal and politico-legal justice.
This helps us understand that the visible levels stand upon the shoulders of and
build upon the wider and deeper invisible dimensions. We can now appreciate
that while politico-legal and societal justice mechanisms are the most appar-
ent and frequently implemented, they actually stand on the deeper ground of
cultural, ecological and spiritual justice; they are the visible part of a larger
indivisible whole.
192 Rama Mani

The integral framework proposed by Lessem and Schieffer is not irrelevant to

our concerns here. It seeks dynamic balance between the four cardinal directions
that represent the four geographic and cultural regions of the world, as well as the
four human faculties (heart, spirit, mind and body) that need to be integrated at the
centre for transformation to occur.

A sustainable ‘integral’ society… would have found dynamic balance

between its ‘Southern’ environmental or animate sector encompassing nature
and community; its ‘Eastern’ civic sector encompassing culture and spiritual-
ity; its ‘Northern’ public sector encompassing governance, science and tech-
nology; its ‘Western’ private sector encompassing finance and enterprise; and
finally its moral centre, encompassing religion and humanity.
(Lessem and Schieffer 2010, p.xxi)

While they use this framework in the context of economics, to argue for a more
culturally inclusive and integrated global economy, we could apply this insight to
justice. Justice can no longer be treated as ‘only’ a governance issue, requiring the
political will of leaders to take remedial action and the judicial or quasi-judicial
measures that might ensue. This is only the first step, albeit essential. This must
be followed by the social, cultural and ecological, and finally anchored in the
spiritual dimension to have lasting impact. In the spiritual ground, all dimensions
find integration and completion within the larger reality of our individual and
inter-dependent existence within the cosmos.
The integral justice approach does not require the conventional political, legal
and societal measures of transitional justice to change or expand dramatically to
encompass the newly identified invisible dimensions of cultural, ecological and
spiritual justice. Rather, it suggests that politico-legal and societal justice meas-
ures will be more effective if they are fully cognizant of these deeper dimensions
on which they are founded, and are designed and implemented accordingly. Fur-
ther, they will be most effective if designed and implemented with the input of
informed and transformed victim representatives.
The integral justice framework works best, therefore, when each dimension
is fully aware of the other dimensions and builds this knowledge and under-
standing into specific measures. For example, trials of perpetrators and their
sentences will have greater impact if they take into consideration the relevant
customary laws and traditional practices of punishment for similar crimes uti-
lised by affected populations. A government apology will provide greater solace
to victims if it is cognizant of their cultural values and the deeper ethical damage
or spiritual pain experienced by victims beyond material loss. In integral justice,
each part addressed is treated as belonging to the interconnected and interde-
pendent whole, which it is impacted by and which it impacts in turn. With this
integrated approach, integral justice is much more likely to meet victims’ needs
and build just societies without some of the unintended negative ramifications
that TJ has had in the past.
 Integral justice for victims 193

Five dimensions of integral justice

Here the five dimensions are described briefly, to reveal both their distinctness
and interconnectedness.

Politico-legal justice
The first level of political and legal justice is what we are most familiar with in
victimology and transitional justice. It includes any measure taken by the politi-
cal establishment or passed through the state’s legal system. It starts with the
demand and lobbying for justice made to political decision makers in transitional
situations and the decisions they take. It includes trials to establish account-
ability and reverse impunity, through national tribunals, ad hoc international
tribunals, hybrid or mixed courts. It also includes amnesties. Human rights law-
yers and TJ experts are becoming adept in crafting conditional amnesties, as in
South Africa and Guatemala, which are more politically and socially acceptable
than past impunity. Officially established national or international truth com-
missions, or truth and reconciliation commissions, also fall within this category.
Vetting of state officials to remove egregious offenders from public office is
another common measure. Likewise official state apologies, commemoration
and compensation undertaken by the government and processed through courts
of law would also fall in this category, although they partially overlap with soci-
etal measures in their ramifications.

Societal justice
Societal justice includes those measures taken at the societal level without neces-
sarily bearing the official stamp of the government, parliament or judiciary, that
lie beyond the scope of politico-legal justice measures described above. There
may sometimes be a slight overlap in some measures. For instance, the state may
adopt the principle of revising textbooks to present a more nuanced and inclu-
sive view of history, but leave implementation to university chancellors or school
boards. Alternatively, the state may agree to undertake commemoration, but turn
to civil society representatives to determine its nature and form in consultation
with victims. Societal measures may also mirror or replicate the politico-legal
measures when these are not forthcoming or inadequate.
An example is Guatemala’s Recovery of Historical Memory (REMHI) estab-
lished by the Catholic Church to complement the perceived inadequacy of the
mandate and access accorded to the official Truth commission. In El Salvador,
an NGO coalition conducted in-depth investigations of human rights abuses and
handed its report to the Ad Hoc Commission that investigated abuses by army
officers, and removed those found guilty. Similar human rights monitoring and
investigation of abuses by civil society organisations have been very important
in numerous countries including the Democratic Republic of the Congo (DRC)
194 Rama Mani

and Peru. These civic processes often feed into and shape official political proc-
esses at national and international level, as they did in El Salvador, DRC, Peru
and more recently Sri Lanka.5 The work of both civil society organisations and
the media in bringing to light war crimes committed in the final stages of the
Sri Lankan war have been instrumental in creating the pressure that led to the
establishment of both the UN High Level Panel and the Sri Lankan Government’s
Lessons Learned Commission. It was again this public pressure that led to the
adoption of the UN human Rights Council Resolution on Accountability in Sri
Lanka in March 2012.
Beyond such measures that feed into official processes lies a whole range of
independent civic and societal initiatives that aim to address the pain of injus-
tice within the society in various ways. They may undertake commemorations
in diverse ways, create bridges of reconciliation or dialogue between opposing
groups, provide psycho-social support for victims and help reunite divided fami-
lies, or even support perpetrators in rehabilitation. Many such initiatives are inno-
vative and sometimes have an even greater impact on individuals and communi-
ties than official politico-legal measures. This is especially so if they are designed
and implemented by victims themselves or by concerned persons who seek to
fulfil the needs of victims and the wider society.

Cultural justice
The third dimension, cultural justice, goes a step deeper than the two previous
levels. Anchoring itself within the culture in which violations occurred, cultural
justice seeks to understand and integrate the complexities of cultural values,
beliefs, practices and traditions and their deep imprint on people, when respond-
ing to injustices. It seeks to address and heal, for example, old wounds of cultural
ethnocide that often accompany political injustice. It attempts to regenerate the
decimated cultural fabric and build bridges between once-divided cultural groups.
Culture includes art, religion, traditions, myths and other cultural practices that
give meaning and grounding to societies that have been uprooted and eroded by
violence and injustice. Elsewhere, I have argued why transitional justice is incom-
plete if it does not integrate culture and I have outlined what culture represents and
what cultural justice would consist of. To summarise:

As with all other social fields – religion, politics, economics– there has been
the ubiquitous tendency for certain actors to seize authority and manipulate
cultural rules and practices to their benefit – thus leading to the erroneous
belief that culture itself is violence-prone. At its depth, culture is the contrary
– it is the ever-adaptive terra-firma that gives each community and nation its
specific meaning, its unique identity, and thus its vital energy to determine its
own future. It remains a repository of the accumulated wisdom of each soci-
ety from ancient times, despite social periods of dilution or stagnation, and
human attempts at manipulation, domination or oppression. This is why it is
 Integral justice for victims 195

incomplete to exclude culture from any endeavour to restore justice within

society, as it neglects a fundamental and defining component of how the soci-
ety’s members see themselves, and how they wish to deal with their recent
past and shape their own future.
(Mani 2011a, p. 548)

While it is essential today to integrate cultural justice meaningfully within the

ambit of ‘transitional’ justice, it is important to spell out exactly how this should
be done and what it would involve. This is necessary to avert or minimise the risk
of culture being misused by opportunists to foment division or discrimination – as
often happens during conflict – rather than to foster justice and peace. Implement-
ing cultural justice would consist of three component parts.

First, its overall approach would be embedded within a nuanced understand-

ing of the culture of the society in question: the core values, beliefs, traditions,
expressions, manifestations that define and shape a particular society including
its main variants; it would also consider their historical evolution and recent
transmutations during conflict. Second, it would design and adopt measures
within its overall TJ strategy that take into account this specific cultural con-
text and seek to restore justice in harmony with these cultural determinants,
with due respect for universal human rights. Third, and importantly, while
culture has often been seen to be oppressive and marginalising of women and
minorities, cultural justice would specifically seek to redress these tendencies.
It would do so not by pressure from outside, but by eliciting internal debate
and seeking out reformist and enlightened local thinkers and actors within the
culture who can bring about such positive change with public support.
(Mani 2011a, p. 548)

In some recent cases, elements of cultural justice have been addressed, either
through official state-mandated means or through civic or informal initiatives.
The inclusion of the annex on religions and traditional practices in the Truth and
Reconciliation Report of Liberia is one example. Addressing cultural justice needs
to become much more widespread and ‘systematic’ – without becoming rigid or
technical. Each culture and society will require an entirely differentiated, tailor-
made and context-specific set of cultural justice measures which cannot simply be
imported or replicated mechanically from elsewhere.
An important component of cultural justice is the powerful role played by art
and creativity, which has indeed been recognised in some cases. Art serves the
process of overcoming victimisation in several ways. It helps victims to express
their deepest feelings. It goes beyond the artist’s individual representation to speak
for the larger victim community. It raises consciousness and alerts conscience
within society. It deters repetition by vividly portraying horrors. It maintains a
historical record, not with dates, facts and statistics but with indelible images,
words, sounds and impressions that are forever engraved in memory. At its very
196 Rama Mani

best, when the artist is infused with spiritual inspiration, art can have a healing
and even transforming effect not only on the victim or the observer, but even on
the perpetrator (Mani 2011b, 2012). Solzhenitsyn alludes to this transformative
power of art in his Nobel Lecture:

Not everything assumes a name. Some things lead beyond words. Art inflames
even a frozen, darkened soul to a high spiritual experience. Through art we
are sometimes visited – dimly, briefly – by revelations such as cannot be pro-
duced by rational thinking.
(Solzhenitsyn 1970)

While great care should be taken not to co-opt and instrumentalise art, deeper
attention should be paid to its healing and transformational role for victims. Both
cultural justice as a whole, and the role of art and creativity specifically, require a
greater space in future.

Ecological justice
Ecological justice has been largely overlooked within transitional justice and it
merits some attention now to understand why it is so important to integrate it.
Archaic humans and surviving indigenous populations consider all of creation to
be sacred: ‘(A)ll nature is capable of revealing itself as cosmic sacrality’ (Eliade
1987, p. 12). Nature is not only intrinsically linked to politics, society, culture and
spirituality but is actually their source. Culture, art and religions all emerged from
nature. The desire to propitiate the elements and express gratitude for nature’s
bounty inspired the oldest religious and cultural practices and artistic expressions.
It was from nature’s laws, resources, and seasons that economy, society and poli-
tics in all societies emerged.
The reverence for and sense of unity with nature persisted for thousands of years,
until barely 4,000 years ago. Nature was worshipped in the form of the Great Mother
across most ancient cultures (Neumann 1963). Paintings and sculptures venerating
the Mother Goddess or Nature are found in archaeological sites in India, Sumer and
Egypt, as also in France, Spain, Germany, Greece and other European sites. They
indicate that nature and goddess worship persisted in diverse civilisations from
20,000 BC until the later Bronze Age, with Crete being the last civilisation where
it survived (Baring and Crawford 1991). Historians and archaeologists observe
that only about 4,000 years ago new ‘dominant’ cultures and ‘patriarchal’ religions
emerged and wiped out 30,000 to 40,000 unbroken years of these prior ‘partnership’
cultures based on feminine or matriarchal principles of egalitarianism, inclusion,
cooperation and creativity (Eisler 1988). Historians note that alongside the many
positive contributions of the newer Abrahamic religions of Judaism, Christianity and
Islam that arose in this period, their negative side was their patriarchal rejection of
the prior peaceful matriarchal traditions and their domination of both nature and the
feminine (Arguelles 1975; Baring and Harvey 1996). For thousands of years, human
 Integral justice for victims 197

societies around the world, with the exception of surviving traditional indigenous
cultures, have been cut off from nature and lost their original sense of interdepend-
ence with and awe of creation. Nature has been dominated, exploited and destroyed,
and the rich and deep ecological bonds between humans and their habitat have
been severed.
The tragic experiences of Native Americans, Australian Aboriginals and
so many other indigenous peoples around the world help us understand the
depth of ecological injustice. Their profound sense of injustice stems not only
from economic deprivation as their lands were stripped and their livelihoods
destroyed. Nor only from political disempowerment as they become second
class citizens in their own native lands. Their deepest suffering came from
the injustice done by invading settlers to their precious earth. It came from
the needless slaughter and extinction of flora, fauna and landscapes consid-
ered both sacred and invaluable to their livelihoods. The inexplicably violent
and greedy behaviour of ‘Wasichus’ or whites suggested to Native Americans
like the holy man Black Elk that, ‘they had forgotten that the earth was their
mother’ (Neihardt 2008, p. 167).
This sense of violation felt by the earth’s indigenous people is repeated over and
over in today’s violent conflicts, which very often destroy the natural habitat, and
plunder natural resources egregiously. The Democratic Republic of Congo, Sierra
Leone, Sudan, Afghanistan and Colombia are some examples of this widespread
abuse of nature. In all violent conflicts today, innumerable innocent victims are
forced to abandon their ancestral lands and beloved landscapes, leaving them to
be plundered and destroyed when they flee, often never to return. The suffering
of refugees and displaced persons arises not only from material loss or physical
pain, but more deeply from this unplanned and involuntary estrangement from the
land that was the birthplace and millennial home of their culture, spirituality and
way of life.
Recently, UN agencies such as UNEP and the UN UNEP/OCHA Joint Unit for
Environmental Emergencies have begun to address humanitarian and conflict-
related environmental issues. While this is essential, it is grossly inadequate from
the point of view of victimology and transitional justice. Technical and techno-
logical approaches and ‘environmental science’ may be partially able to reduce
the devastation done to nature by war. However, these technical approaches to the
environment do not recognise and thus cannot restore the broken ecological rela-
tionship between humans and nature. So far, transitional justice has overlooked
the portion of victims’ suffering that emerges from their brutal separation from
their natural habitat and their sense of violation at seeing their honoured habitat
being desecrated by invaders. It has not responded adequately to victims who
endured not only the humiliation and plunder of their own bodies but also of their
ancestral lands.
The spiritual and cultural bond that people feel to their land and the capacity of
nature to heal the wounds of war were potently expressed by Nelson Mandela in
his Presidential Inauguration Speech in 1994:
198 Rama Mani

To my compatriots, I have no hesitation in saying that each one of us is as

intimately attached to the soil of this beautiful country as are the famous jaca-
randa trees of Pretoria and the mimosa trees of the bushveld. Each time one
of us touches the soil of this land, we feel a sense of personal renewal. The
national mood changes as the seasons change.

We are moved by a sense of joy and exhilaration when the grass turns green
and the flowers bloom. That spiritual and physical oneness we all share with
this common homeland explains the depth of the pain we all carried in our
hearts as we saw our country tear itself apart in terrible conflict…6

That his short Presidential inauguration speech accorded so much importance to

nature shows how he understood that nature could heal the pain of violence and
serve as a unifying force for all South Africans regardless of colour or political
affiliation. This love for nature, Mandela recognised, was not merely physical,
but also spiritual, underlying the deep connection between ecological, spiritual
and cultural justice.
For many cultures in Africa, Australia and elsewhere, the burial places of their
ancestors or the songlines of their mythic predecessors located in designated sacred
places require regular ritual propitiation and safeguarding (Isaacs 2006). The sancti-
fied spots where rituals are conducted and relics are worshipped or stored are secret
and require specific maintenance. There are prescribed rituals for transferring ances-
tral remains or relics if a family or community is forced to relocate (Mbiti 1969;
Mutwa 1998). Most war-affected populations flee in haste with no possibility of
preserving their relics or respecting these rituals. Abandoning their ancestors’ burial
grounds, relics and holy sites causes them profound anguish and signifies a loss of
their identity and power. However, they are rarely able to articulate such ecological
and spiritual distress in ways that might be comprehensible to either environmental-
ists or transitional justice practitioners. These are some of the reasons why ecologi-
cal justice must be integrated within transitional justice, so that victims’ suffering
can be more deeply comprehended and addressed.

Spiritual or metaphysical justice

Spiritual justice is the culminating dimension of integral justice. Spirituality is
essentially concerned with the central themes of metaphysics, the ancient branch
of philosophy that explored fundamental questions of being and the nature of
the world and existence. It refers to those issues that are beyond matter. Larger
scientific questions were examined as part of metaphysics till the development of
the empirical scientific method in the nineteenth century, when it diverged from
the philosophical method of reflection, debate and contemplation. Cutting edge
scientific discoveries are revealing again that there are no clear frontiers between
science and spirituality, as shown by eminent quantum and nuclear physicists such
as David Bohm and Hans-Peter Duerr, and neuro-biologists such as Francesco
 Integral justice for victims 199

Varela. As Einstein tellingly observed, ‘The fairest thing we can experience is the
mysterious’ (Einstein 2006, p. 7).
Just as the millennial philosophic debates on the nature and forms of justice
appear nowhere in the consideration of transitional justice practice today, nei-
ther do metaphysical issues of being and the meaning of existence.7 Spiritual-
ity addresses the core metaphysical issues examined by early philosophers in
each part of the globe and in all cultures. This explains why many of these
issues also surface in the philosophical treatises of all world religions and in
theological debates. As the term spirituality is more widely used in the lit-
erature and in common parlance than metaphysics, it is the one used here for
purposes of clarity.
While policymakers and scholars of peace, justice and security have begun to
address issues of religion recently, the deeper philosophical realm of spiritual-
ity has not yet entered their consideration. So far, spirituality has fallen outside
the remit of academic analysis generally, and in the study of peace-building and
transitional justice specifically. Furthermore, spirituality has become the subject
of apprehension and misunderstanding amongst academics. It is not considered a
topic that merits serious attention or study. Consequently, it is important to explain
what spirituality and spiritual justice mean to understand why they constitute the
foundation for transitional justice specifically and peace-building generally.
Scilla Elworthy (1996, p. 132) explains:8

There is indeed a general confusion around the word ‘spirituality’. For many
people it is synonymous with religion, and yet in reality it is beyond religion.
It is certainly far beyond any of the dogma involved in most religions; it has
nothing to say about belonging to or believing in any set of ideas. Spirituality,
to me is an aspect of the self – a capacity, a potential.

Spirituality is connected – but not reducible – to religion, as it goes beyond pre-

scribed or organised religion. Nevertheless, it can be found and experienced in the
essence of most religions: in that part that speaks not only to confirmed adherents,
but rather to all humans. Spirituality encompasses the ‘substance’ or philosophic
kernel and universal truths inherent in mainstream religions, but goes beyond
the ‘form’ or institutional and ritualistic aspects and exclusive belief systems of
religions. The essential difference between spirituality and religion is that the
former is free of scripture and dogma, and does not impose any one belief system.
Although spiritual justice intersects with culture and religion, it goes beyond their
exclusiveness and consequent divisiveness to be inclusive and unifying. Thus,
spirituality overlaps partially with culture. However, spirituality requires us to
penetrate the external form of culture to arrive at the substance of its inner pur-
pose. Spirituality lies in the deeper meaning of the symbols, rituals, scriptures and
myths of diverse religions and cultures. Addressing religion and culture per se is
not sufficient to comprehend spirituality and integrate spiritual justice.
200 Rama Mani

Spirituality is fundamentally about personal experience. It requires a commitment

to personal evolution and consequently to collective wellbeing, rather than adherence
to the specific belief system or ritual behaviour of a particular religion or culture.
Philosopher Ken Wilber describes this as ‘deep spirituality’, which he describes thus:
‘deep spirituality involves the direct investigation of the experiential evidence dis-
closed in the higher stages of consciousness development’ (Wilber 2007, p. 77).
A defining characteristic of contemporary post-religious spirituality is increas-
ing individual and collective consciousness and ecological awareness. ‘Collective
human consciousness and life on our planet are intrinsically linked’ (Tolle 2005,
p. 23). This indicates the second important overlap: between spiritual and ecologi-
cal justice. Indeed, with rising consciousness, there is a return by modern day spir-
itual seekers to the sense of unity with nature, belonging to the earth, and loving
protection for all beings that characterised indigenous communities and archaic
humans. Indeed, it would not be remiss to refer to the spiritual and ecological
dimensions together as Eco-Spirituality, as the globally emergent spirituality we
are witnessing today is deeply embedded in reverence for the earth and concern
with both ecological devastation and human suffering.
Spiritual and ecological justices are the culminating dimensions of integral jus-
tice and serve to lift victimology and transitional justice out of short-term and
transitory time frames and beyond political and legal constraints. Spiritual justice
is of central importance to victims and to the fields of victimology and transi-
tional justice, because it shifts the locus and time frame beyond this material and
ephemeral lifetime to highlight what is at once essential to human life and beyond
human time and space. The spiritual dimension makes integral justice genuinely
transformative, both individually and collectively.

Spirituality’s relevance to victims: meaning and purpose

The specific relevance of spirituality to transitional justice and victimology arises
principally from its central function of giving deeper meaning and purpose to life.
Victimisation deprives victims of a sense of meaning, purpose and orientation.
Spiritual justice helps them to find meaning at a much deeper level, despite and
indeed through their suffering.
The yearning for deeper meaning and higher purpose is inherent to humans; it is
universal and timeless. Great prophets and saints of diverse religious traditions have
expressed this longing throughout the ages, although those who pursued this solitary
path of higher purpose were often repudiated by mainstream institutionalised religions.
St Francis of Assisi, noted: ‘We are all in mourning for the experience of our
essence we knew and now miss’ (Ladinsky 2002, p. 45). The twelfth-century
Muslim saint Ibn ‘Arabi (1995, p. 75), said:

Everything is created to fulfil a need… That need comes from your essence
the noble soul that the Lord blew into you. Always question yourself about
the reason for your existence, the purpose of your creation.
 Integral justice for victims 201

Do not spend the numbered breaths which you have been given to you just
to wander around the face of this planet, without purpose, with actions of no
consequence. Every action, every motion, must be for a divine purpose.

Religious traditions originally sought to provide humans with philosophical,

ethical and psychological counsel to deal with life’s challenges, to understand our-
selves and evolve towards our higher purpose. They did so directly through scrip-
tures or indirectly through myths, parables and embodied rituals. Over time, the
philosophy, ethics and psychology of religions were diluted and replaced by static
ritual observance, coercive morals and rigid socially-codified conduct devoid of
their original meaning.
Spirituality is a return to this philosophical and psychological core. It seeks to
go beyond prescribed moral conduct to the source of ethics. This is indeed the path
that is often prescribed by realised beings but ignored by the masses that prefer the
safer confines of religious ritual to the challenging pursuit philosophical insight
and psychological depth. A stark example is provided in Hinduism. While the
majority of Hindus devoutly perform a plethora of rituals prescribed in their holy
books called the Vedas with unquestioning faith, the most sacred, ancient texts
of Hindu philosophy, the Upanishads, written over 2,000 years ago, clearly point
out: ‘The rituals and sacrifices described in the Vedas deal with lower knowledge.
The sages ignored these rituals (a)nd went in search of higher knowledge’ (Eas-
waran 1987. p. 110).
The same is true in other religions, including Christianity. Writing in the perilous
period of the Spanish inquisition, St. Theresa of Avila daringly observed: ‘The child
blames the external and focuses his energies there. The warrior conquers the realms
within and becomes gifted’ (Ladinsky 2002. p. 286). St. Theresa of Avila echoes the
pre-eminent exponent of Tao philosophy in pre-Confucian China, Lao Tzu. Well
before the fifth century BCE, the Tao Te Ching, attributed to Lao Tzu, observes:

Knowing others is intelligence;

Knowing yourself is true wisdom
Mastering others is strength;
Mastering yourself is true power.
(Lao Tzu 1992, p. 33)

Ultimately, then, spirituality is the quest to first understand our human nature and
then to rise above it to realise our universal nature. The Upanishads state:

Those who depart from this world without knowing who they are or what
they truly desire have no freedom here or hereafter.
But those who leave here knowing who they are and what they truly desire
have freedom everywhere, both in this world and in the next.
(Easwaran 1987, pp. 191–192)
202 Rama Mani

Spirituality is the response to this deep yearning for purpose and meaning,
particularly in moments of despair within human life. While self-knowledge
and self-realisation is important for all humans, it is particularly crucial to
those who suffer deep victimisation and lose purpose and direction in life.

Integral justice as the catalyst for victims’ transformation

The longing for deeper meaning becomes particularly strong in those who suffer
profoundly. It is as if the distress caused by external events reawakens the inner
yearning for our forgotten essence. Since the last century, survivors of terrible trau-
mas such as the Nazi holocaust, world wars and civil wars have rediscovered this.
Karlfried Graf Dürckheim developed his psycho-spiritual therapy following his
experiences in the first and second world wars. Demoted in his diplomatic career
due to suspicions of his Jewish ancestry, he was nonetheless sent as a diplomat-
scholar to Japan in 1938 by the Nazi government to investigate Zen Buddhism
and spent eight years in this deepening pursuit. Captured in October 1945, by
US troops following their occupation of Japan, his year and half as a prisoner
in Sugamo prison was painful but transformative. On returning to Germany, he
combined psychology with Zen Buddhism and the Christian theology of Meister
Eckhart to develop what he called initiation therapy. The diplomat, one-time Ger-
man nationalist and prisoner of war stated:

The destiny of everything that lives is that it should unfold its nature to its
maximum potential. … Ultimately… we cannot escape from the fact that our
wholeness and welfare depend on our fulfilling our inner mission and living
from our essence.
(von Dürckheim 2007, p. 3 8)

Viktor Frankl developed a new psychotherapeutic approach called ‘logotherapy’,

based on ‘man’s search for meaning’, following his survival from harrowing
experiences in Nazi concentration camps. He notes that ‘... human life, under any
circumstances, never ceases to have a meaning, and that this infinite meaning of
life includes suffering and dying, privation and death…’. He goes on to explain:

Life ultimately means taking the responsibility to find the right answer to its
problems and to fulfill the tasks which it constantly sets for each individual.
These tasks and therefore the meaning of life differ from man to man and
from moment to moment. Thus it is impossible to define the meaning of life
in a general way. (…) Life’s tasks… form man’s destiny, which is different
and unique for each individual.
(Frankl 2006, p. 83, p. 77)

The spiritual grounding of integral justice treats victims as whole human beings,
and does not freeze them in time and space to the moment of their violation,
 Integral justice for victims 203

and reduce them to ‘only’ victims condemned to live truncated lives ever after.
It recognises the inherent potential within each individual. It strives to enable the
victim to overcome suffering and realise this inherent potential in order to recon-
nect to life. In fact, integral justice recognises that underneath the terrible anguish
of victims lies the seed of possibility.
Several spiritual philosophers emphasise that every event in our lives happens
for a purpose: to teach us valuable lessons and enable us to grow in Self-knowl-
edge. Suffering, particularly, offers a pathway to evolution. ‘Every painful event
contains in itself a seed of growth and liberation’ (de Mello 1991, p. 156). This is
neither to justify nor glorify suffering; it is neither to instrumentalise nor trivialise
it. Frankl observes:

I speak of tragic optimism, that is, an optimism in the face of tragedy and in
view of the human potential which at its best always allows for: (1) turning
suffering into a human achievement and accomplishment; (2) deriving from
guilt the opportunity to change oneself for the better; and (3) deriving from
life’s transitoriness an incentive to take responsible action.
(Frankl 2006, p. 138)

Victims are ready to receive the higher learning and awakening that often only
comes forth after one has survived the experience of extreme personal torment.
When one has not suffered personally, life becomes either an entertaining play-
ground or an absorbing drama. Life is busy, but lacks meaning. Suffering disrupts
the routine to act as a catalyst for transformation. Dürckheim observes:

… without experiences that render life unbearable and make the hope of
something new appear alluring and promising, there is no impulse towards
inner change. (…) … shocks and catastrophes can occur which pierce the
armor of a man’s I and these can bring sudden enlightenment.
(von Dürckheim 2007, pp. 89–90, p. 112)

Understandably, many victims are too devastated initially by their loss to be able
to accept this opportunity. As victims, we even become attached to our suffering,
and are loath to abandon our victim identity. Transcending victimisation is even
experienced by many victims as a betrayal of those who did not survive.9 Yet Jew-
ish refugee Vera Schiller de Kohn indicates from her own experience why it is
essential to break out of the prison of victim identification.

Our thoughts lead us in interminable circles without exit… Our mind traps us
in fixed ideas… Loss is a natural condition of life: we must drop, abandon, if
the new is to appear… For the new to surge up, we must bury the old… The
act of burying contains a profound secret that liberates and transforms.
(Schiller de Kohn 2006, pp. 27–28)
204 Rama Mani

Trauma can trap some victims indefinitely in victimisation and a conviction

that unfairness and injustice have singled them out. However, deep suffering
may alternatively crack the shell of their normal identity. The renowned Indian
thinker Nisargadatta Maharaj noted, ‘It is the person you believe yourself to
be that suffers, not you’ (Nisargadatta 2003, p. 495). This realisation may sud-
denly dawn upon victims. It may take them beyond their normal understanding
of themselves to an insatiable curiosity about the purpose of life beyond mate-
rial existence. Dürckheim described this breakthrough in war-affected victims
precisely, and is cited as such by the philosopher Alan Watts in his book, In my
Own Way.

A great deal of my present work is in helping people who underwent great

spiritual crisis during the war. We know, of course, that sometimes, in extreme
circumstances, people have a natural satori or spiritual awakening when it
appears that all is finished for them –and they accept it. This happened often
in the war….

There were three typical ways in which this crisis came about. You heard the
whistle of a bomb falling straight at you, and you knew that this was quite
certainly the end. You accepted it, and quite suddenly the whole universe
made sense. All problems, all questions vanished, and you understood that
there was no ‘you’ other than the eternal. But the bomb was a dud, and you
lived to remember the experience…You were in a concentration camp, and
you had been there so long that you were fully convinced that you would stay
there for the rest of your life. Finally, you had to accept it, and in that moment
you understood everything…You were a displaced refugee far from home.
You had utterly lost your friends and relatives, your possessions, your job,
your very identity, and saw no hope of regaining them. You accepted it, and
suddenly you were light as a feather and as free as the air.
(Watts 1972, p. 321)

Thus, at the right moment, victims experience this breakthrough and are trans-
formed. The memory of their suffering remains, but is no longer a burden that
stops them from living. Instead it makes them grow in self-knowledge, empa-
thy and compassion. It clarifies to them the deeper purpose of their lives and
imbues them with inner power to fulfil this vision. It liberates them to fulfil their
highest potential, and reach beyond themselves to others. This is when the full
transformative power and potential of integral justice, with its deepest roots in
spirituality, can be realised. When integral justice, fully cognizant of and rooted in
its consecutive layers of cultural, ecological and spiritual justice, is adopted and
applied, it enables victims to reconnect to the larger purpose of existence, find
new meaning in life and take their place again within their societies, despite and
through their suffering.
 Integral justice for victims 205

Two final considerations concerning

victims and perpetrators
Two last considerations merit underlining before concluding this chapter, one
concerning victims and one concerning perpetrators.
First regarding victims, we must recognise that there is one underlying factor
that traps victims in their victim identity and makes them reluctant to overcome
it. As long as they are defined as ‘victims’ they bear moral weight and legal
entitlement to rights. As ‘victims’, their state is legally obliged to meet their
rights, failing which they may appeal to existing regional or international courts
for redress. The International Criminal Court, for example, recognises victims’
rights, particularly to reparation, which national legislation often overlooks.
Victims may have the understandable fear that giving up their victim identity
could deprive them of their moral status and legal entitlements. Recalcitrant
states may indeed sideline victims’ rights and demands for justice if they see
‘victims’ now acting as empowered citizens. Effectively victims get impris-
oned in their disempowering identities because this is what our states, societies
and we ourselves expect of them. It is essential to recognise and overcome this
unspoken but debilitating presumption. Victims’ rights must gain such authority
that they simply cannot be neglected. However, victims must not be obliged to
live eternally truncated lives and remain frozen in their trauma to meet our stere-
otypical expectations. We must work hand in hand with victims to both ensure
they obtain their rights and transform their victimisation. The holistic approach
of integral justice can be of support here to enable both.
The second concerns perpetrators. This integral justice approach and the pos-
sibility of transformation applies not only to victims but also to perpetrators. Cer-
tainly, several perpetrators are beyond reform. Many war criminals, such as Slo-
bodan Milosevic and Charles Taylor, remain unrepentant even when confronted
in the courtroom with evidence of their misdeeds. Yet, there are innumerable per-
petrators who experience genuine remorse for their misdeeds, and wish to undo
their wrongs and contribute to society. Earlier, we discussed the limitations of the
conventional justice system. Rehabilitation of perpetrators remains polemical in
theory and practice, notwithstanding advances in criminal justice systems (Ward
and Maruna 2007). Especially in situations of mass violations with multiple vic-
tims and overstretched or dysfunctional legal systems, there are few avenues for
genuine rehabilitation and transformation of perpetrators. There is also the fear
that a ‘soft’ rehabilitative approach to perpetrators betrays victims.
Enabling the transformation of those perpetrators who are ripe for it does not
need to be synonymous with impunity. Accountability is essential not only for
victims but also for societal wellbeing and politico-legal governance. However,
once victims effect their own transformation, they themselves might become more
understanding and less intransigent. They may come to share Frankl’s humble
observation in the Nazi camps: ‘No man should judge unless he asks himself in
206 Rama Mani

absolute honesty whether in a similar situation he might not have done the same’
(Frankl 2006, p. 48).
They may begin to share Mahatma Gandhi’s injunction to judge the deed and
not the doer. As Gandhi said, ‘Man and his deed are two distinct things. Whereas
a good deed should call forth approbation and a wicked deed disapprobation, the
doer of the deed, whether good or wicked, always deserves respect or pity, as the
case may be’ (Gandhi 1960, p. 33). As victims transform themselves and begin
to view their perpetrators and their misdeeds through a different prism, they may
prefer the redemption of their perpetrators so that they can serve society, to their
execution or incarceration, which would serve no wider purpose.
Integral justice aspires to pursue both accountability for violations and transfor-
mation for perpetrators simultaneously, without trumping victims’ rights. Thus,
integral justice allows space for the transformation of both victims and per-
petrators, so that both may find their higher purpose and contribute to society
meaningfully.

Conclusion: the value of integral justice

In conclusion, integral justice deepens transitional justice and substantiates the
field of victimology. It meets the complex and multi-layered needs of victims
more holistically. It also builds more inclusive and integrated societies. Experi-
ence shows that politico-legal, societal and even cultural measures adopted to
help victims are often sharply contested and prove deeply divisive. By anchoring
justice more deeply within the ecological and spiritual dimensions, these divides
can slowly be overcome, and inclusive and just societies can be built.
Integral justice provides an approach to transitional justice and victimology that
is more constructive for victims by addressing and reintegrating all dimensions
of their humanity and restoring their place within society. Furthermore, integral
justice is more constructive for society as a whole, as it recognises that the entire
society is deeply disintegrated and fragmented by violations, and that society as a
whole needs to be revived and reintegrated.
Reintegrating societies, like reintegrating victims, requires us to start with
the natural habitat of which they are a part and to restore ecological justice, so
that affected people can once again connect with and be healed by the nature
they grew up with. It requires reviving meaningfully the spiritual ground, the
deep values and traditions that held individuals and their societies together. It
requires reviving and re-crafting culture, replacing what has become decrepit
with collectively acceptable constructs, for culture is fluid and needs adjustment
after crises and violence. Only when it is thus placed within the crucible of spir-
itual, ecological and cultural justice will social and politico-legal justice have a
firm foundation upon which to stand; only then will these measures take effect
and be beneficial to victims and to society. Only then will we build together
the wise and durable foundations of just peace. This is the contribution integral
justice seeks to make.
 Integral justice for victims 207

Notes
1 The use of ‘Self’ with the capitalised S refers to the higher sense of being, to distinguish
it from the small ‘self’ or ego entity. This usage is common in Hindu Vedantic philoso-
phy, and is also used by several contemporary spiritual philosophers.
2 This draws as well on my personal interactions with Vera Schiller de Kohn between
2005 and 2012.
3 Transitional justice as a eld of study and practice started, one might say, with the rst
comprehensive multi-volume publication, Transitional Justice edited by Neil Kritz in
1995. It has by now spawned an immense library of publications and attracted a grow-
ing eld of scholars that addresses every aspect of TJ mentioned here.
4 I particularly recommend The International Journal of Transitional Justice published
by OUP, headquartered in South Africa, for exposing case studies, critical analysis and
evaluation of TJ from multiple perspectives and highlighting experience from the eld
and particularly for soliciting and supporting Southern viewpoints and scholarship.
5 To give one example, as an advisor on conict for Oxfam GB in Africa, I was person-
ally involved in a joint civil society process with other NGOs such as Human Rights
Watch that led to the ndings of local and international NGOs on war economies and
the pillaging of resources in the DRC being reported condentially to the UN Security
Council under the format of the Arias formula meetings in 2000.
6 Nelson Mandela’s full speech can be accessed at: http://db.nelsonmandela.org/speeches/
pub_view.asp?pg=item&ItemID=NMS176&txtstr=inauguration [Accessed 7 February
2012]. All his other speeches are also archived at: www.nelsonmandela.org.
7 This is why I devoted a chapter of my book Beyond Retribution to examining phil-
osophical conceptions and discussions of justice, as a necessary foundation for the
praxis of current day transitional justice. It would be essential for theories of justice to
inform practice, just as emerging practice of TJ should shape, inform and help evolve
philosophical theorising of justice further.
8 Scilla Elworthy, founder of Oxford Research Group and Peace Direct, is a winner of
the Niwano Peace Prize and was thrice nominated for the Nobel Peace Prize. Central
to her peace work is shifting focus from physical power and brute force to inner power
and spiritual resources.
9 Of relevance here is what the spiritual philosopher Eckhart Tolle describes as the indi-
vidual and collective ‘pain body’. He describes in detail the crippling effect this ‘pain
body’ can have on our lives, if we don’t recognise it, and give it up (Tolle 2005, pp.
129–185).

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Chapter 10

Repairing the impossible

Victimological approaches to international crimes
Rianne Letschert and Stephan Parmentier

Introduction
When it comes to mass victimization, every attempt to provide justice and repa-
ration to victims is an extremely difficult task. After all, what would be a fitting
punishment for the killing of thousands? Is it possible to adequately distinguish
offenders, victims and bystanders in the chaos of a state in collapse? What does
reparation mean for victims who have lost everything – their families, their homes,
their possessions – and who either witnessed the cruellest forms of sadism or were
themselves victims of such cruelty? These are just a few of the complex questions
post-conflict societies are struggling with.
In societies going through a transition from violent conflict to democracy, recent
history has shown that more and more attention is paid to reparative measures,
particularly in Africa and Latin America. Various mechanisms and processes and
other experiments have been set up, often in combination with one another, for
example criminal trials1 (de Brouwer and Heikkilä 2012), truth and reconciliation
commissions, administrative reparation programmes and institutional reform. The
ways in which a state tries to deal with the suffering that has befallen its population
are heaped together under the term ‘transitional justice’, which also encompasses
reparative measures.2 From a victim’s perspective, four concepts are important
here: accountability, truth-telling, reparation and reconciliation (Parmentier 2003;
Parmentier and Weitekamp 2007). Accountability means that the responsibility for
past violations is individualized, acknowledged and also sanctioned in one way
or another, whereby criminal prosecution is only one of the possible approaches.
Truth-telling posits that the scale of the violence and their underlying causes are
mapped and will become part of society’s collective memory. Truth-telling also
plays an important part on the micro-level, where it is phrased as the right to know:
it gives survivors the opportunity to find out the truth about what happened to rela-
tives who are missing or who have been killed.3 Reparation focuses on taking mate-
rial and/or immaterial or symbolic measures to acknowledge victims’ individual or
collective victimhood, and – as far as possible – to make amends for their suffer-
ing. Reconciliation is one of the most difficult concepts to define. It refers to the
process of gaining common ground between former enemies and trying to prevent
past events continuing to be sources of new conflict and new violence. Because of
 Victimological approaches 211

these concepts, some authors have suggested using the umbrella term ‘reparative
justice’, i.e. justice aimed at repair in the broadest sense, as a more suitable alterna-
tive to ‘transitional justice’, which suggests that justice can only be pursued during
the transition period (Danieli 2009; Letschert and Van Boven 2011).
In this chapter we intend to present a victimological approach to international
crimes such as crimes against humanity, war crimes and genocide (the crimes also
falling under the jurisdiction of the International Criminal Court) and our leading
question is to analyse what is known about victims’ needs in relation to reparation
measures after such crimes. To address these issues, we will partly draw on the
academic literature and partly refer to empirical studies in post-conflict societies.
After sketching some general insights into victimology from the viewpoint of
mass victimization, we discuss the main aspects relating to reparations for victims
and the results of three field studies on compensation in particular. Throughout the
chapter we highlight the many complexities that surround the topic of reparations
for victims of international crimes, including the difficulties in determining what
victims really want, taking into account that victims are not a homogenous group
and the fact that needs change over time.

Victimology in the context of mass victimization

Despite the fact that victimologists have traditionally considered human rights vio-
lations to be an object of study and even the origin of victimology (Elias 1985; Van
Dijk et al. 2007), it has to be admitted that subjects of war crimes, crimes against
humanity and genocide have long received little to no attention in traditional victi-
mology. Victimologists have traditionally studied the consequences of victimhood
within the scope of conventional crimes, although it should also be noted that they
are gradually studying a variety of research questions relating to the consequences
of mass victimization resulting from conflict situations. However, it could rightfully
be questioned whether their findings relating to conventional crimes are equally
applicable to the context of mass victimization. Before we go further into the com-
plexity surrounding reparation for victims, we will briefly outline the various ways
in which situations of mass victimization pose a challenge for traditional victimol-
ogy. We limit ourselves to a brief analysis of the types of measures that provide
victims with certain rights in judicial procedures (and therefore have a legal basis)
and of the psychological consequences of victimhood.

Measures for victims in judicial procedures

According to Groenhuijsen (2011) victimology focuses

mainly on determining the nature and frequency of crimes committed, on

how the victims concerned respond, the needs these victims have in the
aftermath of an offence and on the question as to how the negative conse-
quences of crimes can be restricted to a minimum.
212 Rianne Letschert and Stephan Parmentier

Traditionally, the criminal justice system has played a major part in this and the
focus has been on investigating possible ways to prevent secondary victimiza-
tion (i.e. limiting the possible negative consequences of participating in criminal
proceedings). In addition, there is a tendency to investigate whether elements of
reparation could also be brought into criminal proceedings (i.e. elements promot-
ing positive consequences). The focus on rights in criminal proceedings is also
seen in international judicial instruments.
The 1985 UN Declaration entitled Basic Principles of Justice for Victims of
Crime and Abuse of Power has seventeen articles that mainly focus on victimhood
as the result of conventional crime. Victims, for instance, have the right to access
mechanisms of justice, the right to participate in the trial and the right to receive
financial compensation. A definition of victimhood is provided in Articles 1 and 2. It
is important to note that the rights and principles stipulated in the Declaration apply
both to direct victims and to certain indirect victims. The Declaration contains only
four ambiguously formulated articles about the abuse of power by governments. The
subsequently adopted UN Basic Principles and Guidelines on the Right to a Rem-
edy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law (2005), hereafter
referred to as the Reparation Principles (Shelton 2005) and the Rome Statute of the
International Criminal Court (1998) have partly filled up this legal void. In spite of
the fact that these instruments incorporate victim rights, implementing classic vic-
tim rights (such as the right to participate in the trial and the right to receive finan-
cial compensation) in practice turns out to be much more difficult in the context of
massive human rights violations and international crimes (see further Letschert and
Groenhuijsen 2011). Seen from the perspective of victims of international crimes, it
is important to acknowledge the limitations of the criminal justice system and pay
attention to adequate communication with victims about what criminal justice can
and cannot offer. This is in part due to the specific problems that international crimes
cause for criminal justice (for instance the often high number of victims), but also
due to the victimological insight that the relationship between victims and criminal
justice is always complicated (Pemberton et al. 2011).

Psychological impact of victimization

Another field of study for victimologists is the psychological consequences of
victimization. It is important to examine whether the consequences of mass vic-
timization have similar or different psychological effects on victims compared
to those of conventional crimes. Several studies (particularly with regard to ter-
rorism; for an overview, see Letschert et al. 2010) have shown that victims have
very similar needs, regardless of whether they are victims of large-scale crime or
of conventional crime. Generally, they respond in similar ways and, for instance,
experience shock, anger, depression, guilt, fear and the desire to see the offend-
ers punished (Winkel 2007). However, the impact of victims’ experiences can
 Victimological approaches 213

be more extensive in some circumstances (Letschert et al. 2010; Letschert et al.

2011). Victims of group violence, for example, are not only concerned with their
own safety, but also with the safety of family, friends, and other members of the
group, and they often share the same horrible experiences. Group victimhood also
has consequences for the circumstances in which victims can rebuild their lives.
In many cases, the offenders are part of that context, sometimes as victims and
offenders in the same period.
With regard to mass victimization resulting from international crimes, for many
people victimization is not an isolated incident. Instead, multiple victimization
occurs, in both direct and indirect ways. One and the same person may fall victim
to multiple instances of gang rape, may be witness to the torture and/or death of
one or more family members and may see the destruction of all his or her pos-
sessions. The book The Men Who Killed Me (De Brouwer et al. 2011) strikingly
documents the testimonies of sexual assault victims in Rwanda. The testimonies
reveal the duration, gravity and consequences of multiple victimization during
war. Several studies have shown that the effect of multiple victimization can be
cumulative, causing the trauma to have a different impact (Shaw 2001; Wemmers
2011). As a final example, the amount of physical and mental strength individuals
possess and the way in which they themselves, as well as others, experience their
vulnerability are part of their experiences relating to the crimes they have fallen
victim to (Goodey 2005). Physical and mental strength influence the effect the
crimes have on victims and affect the ways in which they can recover. This par-
ticularly plays a part in post-conflict situations, given the gravity of the violence,
the absence of good medical and psycho-social care after the conflict is over, and
the collapse of formal as well as informal social networks.

Access to reparation
As mentioned in the introduction, reparation focuses on taking material and/
or immaterial or symbolic measures to acknowledge victims’ individual or col-
lective victimhood and – as far as possible – to make amends for the suffering
they went through. The concept of reparation is by now also firmly embedded in
international judicial and quasi-judicial instruments. The right to reparation has
a substantive as well as a procedural part: the former concerns the obligation to
award one or more forms of reparation, while the latter deals with the procedure
to enforce this obligation.

Forms of reparation
In the 2005 Reparation Principles, the right to reparation is subdivided into five spe-
cific categories: (a) restitution, (b) compensation, (c) rehabilitation, (d) satisfaction
and (e) guarantees for the prevention of a similar conflict arising in the future (De
Feyter et al. 2005; Letschert and Van Boven 2011).
214 Rianne Letschert and Stephan Parmentier

1 Restitution, an age-old legal concept, originates from the idea that victims
are to be brought back into the position they were in before their rights were
violated. This can be realized, for instance, through the restoration of citizen-
ship, possessions or a job.
2 Compensation concerns the financial reimbursement for damage, including
physical or emotional damage; loss of employment, education or other social
benefits; and other forms of material damage.
3 Rehabilitation covers medical and psychological help, as well as legal and
other social services.
4 Satisfaction is the broadest concept: it is concerned with making the truth
public, provided that such a disclosure will not cause any more harm to or
jeopardize the safety of victims, surviving relatives or others involved. Sat-
isfaction can also mean looking for victims’ remains and extending facili-
ties for a dignified funeral or other ceremony in close consultation with the
wishes of the surviving relatives. It can also entail organizing a memorial
service or a tribute to the victims or expressing a public apologies, including
an acknowledgement of the facts and an acceptance of responsibility. Finally,
the concept of satisfaction can include legal and administrative sanctions for
those responsible for the violations as well.
5 The fifth category of reparation encompasses guarantees of non-repetition, a
euphemistic expression meaning all kinds of strategies and measures to avoid
similar violent conflicts in the future. They include the fundamental reform
of hard-core state institutions such as the police, the army and intelligence
services, the judiciary, as well as soft-core bodies such as schools, health
institutions, the media, etc. The hearts of many legislators or policymakers
will sink when this list is presented to them. This is why there is a wide divide
between the analytical force of these measures and their practical feasibility,
not only when individual measures are concerned.

In sum, the proposed measures can be ordered in three categories. There are meas-
ures which take shape through legal action, for instance, participating in trials
that on the one hand bring a form of recognition and on the other hand can pro-
vide a means to receive financial compensation. In addition, there are symbolic
measures which can lead to the recognition of victimhood, for example a public
apology or the establishment of a memorial day. The final category relates to
financial measures that focus on compensation of the damage suffered. They can
sometimes be enforced through legal action, but this is certainly not always the
case. Financial reimbursements can also be granted through administrative repa-
ration programmes by means of individual payments (lump sum or through pen-
sions), compensation for school tuition or collective investments in community
projects. Considering the massive suffering that victims of international crimes
or gross human rights violations go through, no form of reparation will ever be
able to meet the victims’ many needs. Therefore, it must be concluded that all the
 Victimological approaches 215

above-mentioned measures are for a large part symbolic (Hamber 2001) and that
repairing the gigantic harm of victims is in fact impossible.

Individual versus collective measures

In several academic contributions scholars have questioned whether the implemen-
tation of an individual right to reparation after mass victimization is feasible for the
large group of victims. Seen from a purely pragmatic or politically realistic point
of view, the answer would have to be no.4 In the context of mass victimization, the
restrictions of an unlimited individual right to reparation are abundantly clear. Of
what use is such a right to a victim when it is obvious beforehand that enforcing
this right in practice will be unfeasible? This will only strengthen the feeling of
injustice brought about by the violent crimes, a process referred to in victimology as
‘secondary victimization’ (Orth 2002). However, since the first major human rights
treaties were drafted, normative human rights legislation has considered the right to
an effective individual legal remedy after violations of human rights to be one of the
core rights. As Groenhuijsen (2011) argued: ‘Any criminal act is a severe violation
of the victim’s human rights, on the basis whereof the victim is entitled to an effec-
tive remedy within current judicial procedure.’
But is this realistic within the context of mass victimization? It seems that states’
options and ability to actually offer individual victims an effective remedy are
extremely limited when violence was the rule rather than the exception (De Greiff
2006, p. 454; Tomuschat 2005). This is the case for reparation claims via human rights
procedures in which the state is held responsible, as well as via criminal procedures
in which an individual is ordered to pay compensation. An extra complication in this
matter is the fact that international human rights legislation is characterized by an
expansive normative framework but still lacks effective means of enforcement.
Within the international legal framework, the concept of collective reparation is
less well-developed compared to reparation in individual cases. Yet some develop-
ments suggest that international law has embraced collective compensation (Dubin-
sky 2004; Roht-Arriaza 2004; Laplante 2007; Hofmann 2010; Rosenfeld 2010). The
Inter-American Court of Human Rights case law has given an important impetus to
its further elaboration.5 The Rules of Procedure and Evidence of the International
Criminal Court Statute also stipulate that the Court may award reparations ‘on a
collective basis’ and, if possible, may also order an award for collective repara-
tions through the Trust Fund (Rules 97 and 98, respectively). Additionally, several
Truth and Reconciliation Commissions in the recent past have made recommenda-
tions towards collective reparations.6 The most important aspect mentioned in this
context is the country’s economic reality.
An important issue that requires more research is the question of how individ-
ual needs relate to collective needs. Social psychologists have already pointed out
that the psychological needs of individuals and society often widely diverge and
are sometimes even incompatible. The way in which reparations are awarded will
216 Rianne Letschert and Stephan Parmentier

therefore have to take these needs into account (Hamber and Wilson 2002; Hal-
demann 2011). These psychologists have, for instance, drawn attention to the fact
that individual needs are made subordinate to the demands of national unity and
reconciliation; they also suggest that there may be many differences between the
individual psychological processes and national processes such as those triggered
by truth commissions. Hamber (2000, p. 10) also argues that ‘although socio-
economic development (social reconstruction) is necessary, the physical and psy-
chological impact of violence has to be addressed directly and individually if we
are ever to deal with the traumas of the past and prevent cycles of revenge from
emerging’. At the same time, psychologists acknowledge that, in some respects,
the two are closely linked, as is shown when victims have to speak publicly at, for
example, Truth and Reconciliation Commission hearings.7

Judicial and non-judicial approaches

Arguably, international legal procedures (either criminal proceedings or before
human rights courts) provide a suitable means to give a symbolic meaning to dam-
ages, while the compensation and reparation of acute and large-scale damage can
be tackled more effectively and more efficiently by other means than the law, such
as for instance through administrative reparation programmes (Groenhuijsen and
Pemberton 2011; Letschert et al. 2011; Letschert and Van Boven 2011). Letschert
and colleagues (2011) have encapsulated this position in a straightforward man-
ner: ‘Even more so than on the national level, justice is done if it is experienced
as such.’
Not all institutions of international criminal justice may agree with this proposi-
tion. The Prosecutor for the International Criminal Court, in a press release enti-
tled ICC Cases an opportunity for communities in Ituri to come together and move
forward, stated on the occasion of the violence in Ituri, DR Congo, in 2008:

Our mandate is justice, justice for the victims. The victims of Bogoro; the
victims of crimes in Ituri; the victims in the DRC. This case, and each of
our cases, is a message to victims of crimes worldwide, that perpetrators
will be held accountable...This case and our other cases in the DRC are an
opportunity for all the communities in this province torn by conflict, to come
together.
(ICC-OTP-20080627-PR332, Press Release)

Despite this position, it could be argued that people’s expectations of non-judi-

cial measures in providing justice and reparations are increasing and may over-
take those offered by judicial bodies. It may suffice to have a closer look at the
empirical surveys mentioned in the following paragraphs to substantiate this
argument. Also the Trust Fund for Victims, which has been set up alongside the
International Criminal Court, has generated higher expectations with victims
than the judgements in the cases investigated by the International Criminal Court
 Victimological approaches 217

itself (see De Brouwer 2007). Apart from paying out the individually granted
reparations, the Trust Fund also plays a more humanitarian role, in which it can
collectively support affected communities in the reconstruction after conflict
(www.trustfundforvictims.org). It should be noted, however, that the Trust Fund
relies on voluntary contributions by donors and it remains to be seen whether it
can meet the most urgent needs of victims of international crimes.
For the most part, it seems that victims’ individual rights to compensation (rep-
aration-as-a-right, Letschert and Van Boven 2011) can be achieved with more
success through the implementation of other elements of reparative justice, both
in the acute phase (emergency aid, legal aid, health care) as well as in the long
run (aimed at economic and social development). Does this mean that the idea of
reparation as a right should be completely abandoned? In our opinion, this would
be going too far. The developments on the international level, particularly the
creative and innovative interpretations by the Inter-American Court of Human
Rights regarding the right to reparation, for groups as well, have set an important
precedent for other international and national judicial bodies to build on. How-
ever, it seems important not to raise the expectations too high when large numbers
of victims are involved and the relevant states face the immense challenge of
having to rebuild a nation despite major financial shortcomings. In this context,
the development of reparation is a complicated matter, especially when it also
comprises the categorization of individuals and groups into victim groups or ben-
eficiaries (see for more on this matter Letschert and Van Boven 2011). While the
human rights discourse has placed high ambitions, it is equally important not to
lose sight of reality and to take account of what is feasible.

Victim perspectives on reparation

How do victims themselves view reparation and what do they think about the
balance between individual and collective measures? Asking these questions is
also paying attention to the fact that the opinions of victims, and the population
at large, are rarely taken into account in the case of international crimes. Most
often, policies of post-conflict justice, including reparation policies, are designed
and implemented by national and international elites in a ‘top-down’ manner, i.e.
without due reference to the attitudes and needs of victims. Since the end of the
twentieth century, more attention is paid to empirical studies conducted from a
‘bottom-up’ perspective, i.e. with the aim to highlight the opinions and attitudes of
the population, and sometimes of victims specifically, in relation to post-conflict
justice issues in general and reparations in particular.
In the following sections we focus on three cases from different continents: Bos-
nia/Serbia, Northern Uganda and Cambodia. While throughout these cases we focus
primarily on the first two categories of reparations, namely restitution of property
or material goods and monetary compensation, other forms of reparations will also
be mentioned. This attention to empirical studies brings us in line with a transitional
justice approach ‘from below’ (McEvoy and McGregor 2008). Before presenting
218 Rianne Letschert and Stephan Parmentier

the main findings, we mention two caveats that are congruent with important con-
clusions on the limitations of empirical research about transitional justice (Thoms
et al. 2008). First of all, it is an illusion to think that victims constitute a homogenous
group and therefore all have the same individual attitudes and needs. An analysis
of empirical research into victims’ expectations in post-conflict situations shows
varying results, possibly because of the specific research methodology used and
the paucity of comparative studies. Secondly, research has also shown that victims’
attitudes and needs change over time, partly because respondents have unreliable
recollections of the past and that any empirical findings should be treated with the
highest degree of caution (Hamber 2009, among others).

Bosnia and Serbia

We first have a look at some salient findings based on our own research in Bos-
nia and Serbia (Parmentier et al. 2009; Parmentier et al., 2014). Both countries
belonged to the former Yugoslavia that was hit by a series of violent conflicts in
early 1992, following the breakup of the mother country. Bosnia and Herzegovina
plunged into a devastating war that lasted for almost four years and took an enor-
mous toll on its population, infrastructure and cultural heritage. Many atrocities
such as mass murders, extrajudicial executions, torture, rape, illegal detention,
forced displacement, looting and destruction of religious and cultural sites are
fairly well documented, though responsibilities for them continue to be contested.
While most of the armed conflict during the Yugoslav war took place outside the
borders of today’s Serbia, its population also encountered victimization on its own
territory or in relation to Serbian groups in other parts of the former Yugoslavia.
The Dayton Peace Agreements signed in December 1995 put an end to the war.
In 2006 and 2007 a research team from the University of Leuven conducted a
self-administered quantitative survey on the territory of Bosnia and Serbia respec-
tively (Parmentier, et al. 2009; Parmentier et al. 2014). The general aim of the
survey was to inquire about the attitudes and opinions of individuals about the
process of dealing with the past (or transitional justice), with a particular focus on
the ‘possibilities’ (or opportunities) and the potential of a restorative approach to
such process. The same methodology was used in both countries:

a creating an instrument of data-gathering, namely a printed questionnaire with

a total of thirty-eight questions, all of them closed or semi-closed with only
one open question on the meaning of reconciliation;
b determining an adequate sampling method: given the absence of a popula-
tion census in Bosnia and Serbia since before the war and the impossibility
of creating an accurate national representative sample, we opted instead for
a ‘quota sampling method’. This implied dividing the target population into
subgroups or strata according to the criteria of particular interest;
c collecting the data through the distribution of the questionnaire: in Bosnia
students of the Faculty of Criminal Justice Sciences, University of Sarajevo,
 Victimological approaches 219

distributed the questionnaires in their home towns or villages and retrieved them
after a few days, leading to 855 questionnaires returned from a total number of
900 distributed; in Serbia the questionnaires were distributed by members of
nineteen Serbian NGOs who belong to the Association Joint Action for Truth
and Reconciliation, each of them with diverse target groups; of the total number
of 1,200 questionnaires distributed 922 were returned duly filled; and
d analysing the data gathered: a mask was created using SPSS software, all data
were entered and several levels of analysis were performed, including uni-
variate, bivariate and multivariate analyses, factor analysis, cluster analysis
and tests of the reliability of scales.

The questions about restitution and monetary compensation were asked under the
heading of the accountability for the perpetrators of the harm done ‘to you’ (mean-
ing the victims). In the case of Bosnia (Parmentier et al. 2009):

• 80 per cent of the respondents gave priority to restitution (return of property

and material goods) and to confession alike;
• 70 per cent of the respondents agreed/strongly agreed with prosecution in
courts in Bosnia;
• 68 per cent thought perpetrators should apologize;
• 66 per cent thought they should be obliged to pay compensation to the victims;
• 62 per cent thought they should do community work when compensation or
restitution would not be possible;
• 61 per cent thought they should be prosecuted in a court outside of Bosnia; and
• 59 per cent thought only those with highest responsibility should be pros-
ecuted.

In the case of Serbia, the results were strikingly similar, despite the very different
nature of the conflict and the types of harm (Parmentier et al. 2014):

• 84 per cent favoured confession by the perpetrator;

• 82 per cent favoured restitution of property and material goods;
• 75 per cent thought perpetrators should apologize;
• 69 per cent thought they should be obliged to pay compensation to the victims;
• 66 per cent thought they should do community work when compensation or
restitution would not be possible;
• 63 per cent thought prosecution should take place in a criminal court in one
of the countries of former Yugoslavia;
• 63 per cent thought only those with highest responsibility should be pros-
ecuted; and
• 58 per cent thought prosecution should take place in a criminal court outside
of former Yugoslavia.
220 Rianne Letschert and Stephan Parmentier

These results suggest that at least two-thirds of the respondents in both countries
expressed an interest for measures of restitution and monetary compensation and
that they favoured material measures (restitution and compensation) and symbolic
measures (confessions and apologies) over any other (e.g. criminal prosecutions).

Northern Uganda
Similar fieldwork was undertaken in several African countries by the International
Centre for Transitional Justice (New York) and the Human Rights Center at Berke-
ley School of Law (University of California).We limit ourselves here to their studies
on Northern Uganda in 2005 and 2007 (Pham et al. 2005; Pham et al. 2007). This
region has fallen prey to two decades of violent conflict with the Lord’s Resist-
ance Army (LRA) fighting against the Ugandan government and applying extreme
brutality against the people of the region. Countless civilians were mutilated and
tens of thousands of children and adults were abducted to serve as soldiers and sex
slaves for the commanders. Because it was unable to beat the LRA in a military way
or even to bring it to the negotiation table, the Ugandan government in December
2003 decided to refer the situation in Northern Uganda to the International Criminal
Court in order to conduct investigations and issue indictments against some LRA
commanders. This decision and the ensuing indictments by the Court sparked huge
and at times fierce debates in Uganda and in the international community. The situ-
ation in Northern Uganda dramatically changed in late 2005 with the withdrawal of
the LRA forces from Uganda into other countries of the Central African region and
in the summer of 2006 the peace talks between the LRA and the government started
and finally led to a joint agreement in June 2007.
The empirical researches were aimed at measuring the exposure to violence
and the opinions and attitudes of the population about specific transitional justice
mechanisms, as well as to understand these opinions in more depth and to assess
the needs of the population. For this purpose, the first study of 2005 entailed inter-
views with slightly more than 2,500 respondents from four districts in Northern
Uganda, using random sampling methods to obtain a representative overview of
the situation. The face-to-face interviews were conducted by a wide number of
teams of trained interviewers in April and May 2005, using a structured question-
naire. In 2007, after the negotiations between the government and the LRA and
in a changed political situation, more or less the same research team decided to
conduct a follow-up study in Northern Uganda, using the same research methods
with more than 2,800 respondents.
It is interesting to compare the results of the surveys with respect to repara-
tion measures and particularly restitution and monetary compensation. In the
2005 survey, the respondents were asked to define human rights, peace and jus-
tice (Pham et al. 2005). Within the latter category, an overall 31 per cent defined
justice as trials and an overall 18 per cent viewed it as reconciliation (in both
cases with considerable differences across the four main districts in the region).
Compensation was listed by no more than 8 per cent of the respondents, but this
 Victimological approaches 221

figure was identical across the districts. In the 2007 study conducted around the
end of the hostilities, around 70 per cent of the respondents indicated that those
responsible for the crimes should be held accountable (Pham et al. 2007). Much
more emphasis than before was put on mechanisms for truth-seeking about the
crimes of the past and on reparations to victims. As to the latter, the majority of
respondents answered that they would prefer direct compensation, in the form
of monetary compensation (52 per cent), food (9 per cent) or cattle (8 per cent),
while apologies, justice and reconciliation were each deemed important by 10
per cent of respondents and memorial sites were preferred by 59 per cent of
respondents. These new findings led the researchers to recommend that the gov-
ernment and the international community should promote the national dialogue
for truth-seeking in Northern Uganda and set up a reparations programme for
victims. It should be noted that none of the surveys asked about the restitution
of property or other material goods, which is quite remarkable in view of the
categories contained in the United Nations Basic Principles and Guidelines that
were adopted in 2005 after long discussions.

Cambodia
The third example is from Cambodia: between 1975 and 1979 an estimated 1.7
million people passed away as a result of oppressive policies implemented by
the Khmer Rouge regime under the leadership of Pol Pot (Pham et al. 2009).
Its philosophy was based on agriculture and total collectivism and the country
was completely sealed off from the outside world. The Khmer Rouge regime first
instilled a climate of terror and violence upon the population and then deported
many people to the countryside and detention centres all over the country where
the vast majority of them were killed or died from starvation, disease, etc. In 1979
the Vietnamese army invaded the country and the Pol Pot regime collapsed. After
the Vietnamese withdrawal and the signing of the Paris Peace Agreement in 1991,
a decade of negotiations between the new government and the United Nations
started. It resulted in the establishment of the Extraordinary Chambers in the
Courts of Cambodia (ECCC) to try the crimes of the Khmer Rouge regime. This
court in fact constitutes a hybrid system with a mix of national and international
judges and operating under the civil law system. The ECCC can only propose col-
lective reparations (De Brouwer and Heikkilä 2012).
In September 2008 the Human Rights Centre of the University of California,
Berkeley, conducted a first population-based survey in Cambodia to measure pub-
lic awareness of the ECCC and capture attitudes about the Khmer Rouge regime
and the desire for justice and reparations for past crimes (Pham et al. 2009).
Respondents were randomly selected among all adult residents of Cambodia by
means of a four-stage cluster sampling strategy to ensure that the final sample was
representative. Face-to-face interviews were conducted in an anonymous manner
with about 1,000 individuals by means of a structured questionnaire. The data
collection process took place in partnership with the Center for Advanced Study,
222 Rianne Letschert and Stephan Parmentier

a Cambodia-based non-profit research organization. A follow-up survey was con-

ducted in December 2010, a couple of months after the ECCC rendered its first
judgement in the case of Duch, who was sentenced for crimes against humanity
and grave breaches of the 1949 Geneva Conventions (Pham et al. 2011). Like-
wise, about 1,000 Cambodians were interviewed to measure their awareness of
the ECCC and their attitudes to justice and reparations. The results of both sur-
veys should therefore be seen against a specific background: the ECCC deals with
crimes that took place in the 1970s, i.e. more than thirty-five years ago; and at
least 25 per cent of all respondents were born after the fall of the Khmer Rouge
regime.
The 2009 survey (Pham et al. 2009) revealed that:

• a majority of respondents (88 per cent) said (symbolic) reparations should

accrue to victims of the Khmer Rouge;
• 68 per cent said that these should be provided to the community as a whole;
• over 53 per cent said that such measures should be in a form that would ben-
efit the Cambodians’ daily lives and should include:
 social services (20 per cent)
 infrastructure development (15 per cent)
 economic development programmes (12 per cent)
 housing and land (5 per cent).

One important observation arising from this survey was pointed out by Pham
et al. (2009, p. 4–6):

most respondents said it was more important for the country to focus on prob-
lems Cambodians face in their daily lives than on the crimes committed by
the Khmer Rouge. This suggests that the ECCC must find ways to ground its
activities in the current concerns and needs of the population.

The follow-up survey of 2011 recorded very similar results (Pham et al. 2011):

• 83 per cent (2008:76 per cent) of the respondents emphasized that, even though
justice is important, their priorities lie with the realization of basic needs;
• 63 per cent (2008: 53 per cent) of victims would have preferred that the
money to fund the ECCC had been spent on something else; although the
vast majority of respondents believed that the ECCC would:
 correctly address the crimes committed by the Red Khmer (84 per cent)
 rebuild trust in Cambodia (82 per cent)
 help promote national reconciliation (82 per cent)
 bring justice for the victims of the Khmer Rouge regime (76 per cent).
• The results on reparations were similar to the 2008 results in that the vast
majority of respondents (91 per cent) stressed symbolic reparations (47 per
cent: building memorials; 34 per cent: public ceremonies) and three out of
 Victimological approaches 223

four (73 per cent) said they preferred community reparations. Other results
on reparations were that:
• 33 per cent of the respondents recommended social services (such as health
care and education);
• 25 per cent wanted monetary compensation and/or agricultural support; and
• 14 per cent wanted the government to build infrastructure for the affected
communities.

Conclusions
While victimology has traditionally paid substantive attention to victims of con-
ventional or common crimes and the consequences of their victimhood, recent
years have witnessed an increasing interest in victims of war crimes, crimes
against humanity and genocide. The psychological and social consequences of
their victimization, as well as the legal strategies to provide information, assist-
ance and reparation, have become the object of new and promising research. In
the case of international crimes even more attention is paid to the implications of
victimization for the wider context of the community and society at large.
In this chapter we have focused on one crucial aspect of victimization and its
consequences, namely reparations for victims who have suffered tremendous and
unthinkable harm in the course of wars, violent conflicts, genocide and other cruel
circumstances. The concept of reparation is by now firmly embedded in interna-
tional judicial and quasi-judicial instruments, and the individual right to reparation
for victims encompasses a substantive as well as a procedural part. Despite the
legal consequences that they may entail, it seems that judicial procedures award-
ing individual reparation orders to victims are not always considered by victims to
be the most effective. In some cases, victims may be drawn to non-judicial bodies
that offer them concrete services, such as the Trust Fund for Victims. Arguably, a
balanced mix between judicial and non-judicial measures is crucial to give effect
to the right of reparation for victims of international crimes.
The debate about reparations for victims has been strongly dominated by top-
down policies designed and implemented by national and international elites.
The attitudes and opinions of victims themselves and the affected populations at
large have rarely been taken into account. But several empirical researches have
captured the viewpoints and expectations of common people, many of them
victims of international crimes. For the most part, they relate to quantitative
surveys with representative samples of the populations affected, although very
few apply exactly the same methodologies and instruments, which makes hard
comparisons in time and space extremely difficult. Moreover, people and vic-
tims in particular do not constitute a homogenous group and therefore may have
very different individual attitudes and needs, which tend to change over time.
Our concise overview of three such cases, Bosnia/Serbia, Northern Uganda and
Cambodia, has revealed the many issues that play in a post-conflict justice con-
text – and sometimes while the violent conflict is still ongoing. Despite the
224 Rianne Letschert and Stephan Parmentier

caution to be applied, it is possible to derive from the data a strong interest in

reparations, sometimes more materially or financially oriented, at other times
very symbolic and sometimes more geared towards providing services for com-
munities rather than individuals. Whatever the outcome of such surveys, they do
provide us with important insights about people’s views and therefore constitute
important sources of information for policymakers on how to address the tre-
mendous harm and far-reaching consequences of international crimes, which in
reality, can never be fully repaired.

Notes
1 For instance, the International Criminal Tribunal for the Former Yugoslavia, the Inter-
national Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraor-
dinary Chambers in the Courts of Cambodia.
2 The renowned International Center for Transitional Justice denes transitional justice
as referring ‘to the set of judicial and non-judicial measures that have been imple-
mented by different countries in order to redress the legacies of massive human rights
abuses’. See www.ictj.org
3 As incorporated in the UN Convention on the Protection of All Persons from Enforced
Disappearances, which took effect on 23 December 2010 (Article 24.2).
4 United Nations reports also note the large amount of discretionary power of govern-
ments: ‘While, under international law, gross violations of human rights and serious
violations of international humanitarian law give rise to a right to reparation for vic-
tims, implying a duty on the State to make reparations, implementing this right and
corresponding duty is in essence a matter of domestic law and policy. In this respect,
national Governments possess a good deal of discretion and exibility’ (UNHCHR
2008, p. 14).
5 IACtHR, Case of the Moiwana Community v. Surinam, Judgment of 15 June 2005,
para. 194: ‘Given that the victims of the present case are members of the N´duka cul-
ture, this Tribunal considers that the individual reparations to be awarded must be sup-
plemented by communal measures; said reparations will be granted to the community
as a whole.’ See also IACtHR, Case of the Mayagna (Sumo) Awas Tingi Community
v. Nicaragua, Judgment of 31 August 2001. For more detailed references, see Interna-
tional Law Association, The Hague Conference, Reparation for Victims of Armed Con-
ict, including a Draft Declaration of International Law Principles on Reparation for
Victims of Armed Conict 2010; available at: www.ila-hq.org/en/committees/index.
cfm/cid/1018.
6 Peruvian Truth and Reconciliation Commission, Plan of Integral Reparations (PIR),
June 2003, para. 3.6, available at: www.cverdad.org.pe; Guatemala, Memory of
Silence, Report of the Commission for Historical Clarication, Recommendations, III,
para. 10, available at: http://shr.aaas.org/guatemala/ceh/report/english/toc.html; Final
Report of the Truth and Reconciliation Commission of Sierra Leone, Vol. 2, Chap-
ter 4, Reparations, para. 27, available at: www.sierra-leone.org/TRCDocuments.html;
Chega!, Report of the Commission for Reception, Truth and Reconciliation in Timor-
Leste (CAVR), available at: www.cavr-timorleste.org/en/chegaReport.htm.
7 Both academic literature and publications aimed at the general public often feature
claims regarding the positive inuence of post-conict processes on victims’ psyches.
For these claims, empirical evidence is often lacking (Doak 2011, p. 269).
 Victimological approaches 225

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Chapter 11

Transitional justice and the victims

A special focus on the case of Chile
José Zalaquett

Introduction
This chapter focuses on the transitional justice policies adopted by Chile after
the country’s return to democratic rule in 1990, following nearly seventeen years
of military dictatorship. The case of Chile is widely regarded as one of the rich-
est and most important experiences in transitional justice in the Americas and
beyond. Thus, an analysis of this case may help to shed light on many critical
transitional justice issues.

Transitional justice and the evolving notion of victim

Political change towards democratic rule in Latin America

in the 1980s and 1990s
Transitional justice started to be shaped around the political transitions to democ-
racy in South America from the early 1980 onward. The first of these was the
Argentinean transition, which began in December of 1983. The term of art ‘tran-
sition to democracy’ preceded by nearly a decade that of ‘transitional justice’.1
It was first coined from the perspective of political science in the mid-1980s
(O’Donnell et al. 1986). Transition to democracy was understood then as an inter-
val between the demise of an authoritarian regime and the installation of a demo-
cratic one in its stead. What the authors had in mind was the process of revaluation
of the democratic idea and the end of the military dictatorships regimes in Latin
America which, by the time they were writing, had already occurred in Argentina
and Uruguay. That process coincided with the beginning of the dissolution of
the Soviet system and of the Cold War. It spread later on to Central and Eastern
Europe, Africa, Central America, South East Asia and the Middle East. The initial
development of this concept of transition to democracy has been well described
by Mainwaring (1989).
Although there were European examples of political change from an authoritar-
ian regime to democracy before the Argentinean transition – Greece, in 1974; Spain,
 Transitional justice in Chile 229

in 1975; and Portugal, in the period 1976–78 – it was the end of the military regime
in Argentina, in December of 1983, following the defeat of the armed forces of that
nation by the British forces in the Falkland war of 1982, that spearheaded interna-
tional concern over the need to address a legacy of past abuses.

Transitional justice as the ethics for a time of

political reconstruction
We are reminded by Max Weber (2004), that different realms of life call for spe-
cific moral norms. Such prescriptions are not necessarily weaker or stronger than
the equivalent rules which are appropriate for other spheres. Also, they may all
derive from some superior norm, but their more specific content ought to fit the
particulars of a given realm, be it that of family relations, commercial transactions
or political life. It may be added that the domain of democratic political ethics is
governed by distinct moral norms that depend on the time or moment to which
they apply: a foundational time, a time of sustainable life of the democratic sys-
tem, a time of utter breakdown of the social contract or a time of reconstruction.
For the first three of these ‘times’, there have been norms, doctrines and practical
precedents, widely agreed upon, which go back to the eighteen century and have
continued to be produced since that period.
For the foundational time of a republic, there are theories of moral philosophy,
the precedent of liberal revolutions, and constitutional theory. For the time of the
sustainable life of a democracy, among other relevant norms, one may count the
guarantees for individual rights, the notions of the rule of law and public account-
ability, and the electoral systems that allow for the will of the people to manifest
itself. For the time of breakdown of a nation’s order the norms of International
Humanitarian Law and of emergency rule may be applicable. Yet, for the period
of democratic reconstruction, there was no set of generally agreed upon principles
until the development of transitional justice. The fact that this field is young may
account for the attention it has received in the last three decades in political and
academic circles worldwide and for the intensity of the debates it elicits.
Certainly, there were significant precedents of what is now termed transitional
justice before the 1980s. Yet it was with the Argentinean transition to democracy
that the international political and academic community took notice of the need
for the development of principles to address a legacy of past State crimes. In cer-
tain cases – certainly, those of Argentina, Uruguay and Chile – political transition
meant indeed a process of democratic re-foundation. Yet most political changes
occurring in subsequent years marked the beginning of a novel democratic con-
struction, rather than a re-foundation.

Evolution of the transitional justice field

Following the first South American experiences that started in the 1980s, the tran-
sitional justice agenda expanded to encompass a variety of situations: attempts
230 José Zalaquett

at the fresh foundation of a proper democratic regime, rather than at restoring a

defunct democracy (El Salvador, Guatemala); political change that ended a regime
of institutionalized discrimination (South Africa); the disintegration of a State
(former Yugoslavia); an ongoing civil war (Uganda, Sierra Leone) or the coexist-
ing of internal armed conflict and a functioning democracy (Colombia); reforms to
increase respect for human rights, without changing the regime into a democracy
(Morocco); situations in which a peaceful or armed revolution has brought to an
end a dictatorial regime, but the respective nation has no traditions of democratic
rule in living memory (Central and Eastern Europe, starting in the late 1980s; Egypt
and Tunisia, starting in 2011). Most new cases add to the existing typology.

The centrality of the figure of the ‘victim’ in transitional justice

The notion of ‘victim’ certainly precedes the development of transitional justice.
Yet as this field has been evolving, the figure of the victim has acquired a particu-
lar centrality. Truth commissions have accounted for their fate; memorials have
been erected to honour them; official declarations of acknowledgement of past
crimes focus on the dignity of the victims and the determination not to let such
atrocities reoccur; reparations have been established; specialized institutions have
been created to provide for rehabilitation for victims of torture. Even in the field
criminal justice, which focuses mostly on the alleged perpetrator, novel concepts
have emerged, such as the ‘rights’ to truth and to justice. The United Nations
notion of victim is as follows:

Victims are persons who individually or collectively suffered harm, including

physical or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights, through acts or omissions that con-
stitute gross violations of international human rights law or serious violations
of international humanitarian law. Where appropriate, and in accordance with
domestic law, the term ‘victim’ also includes the immediate family or depend-
ants of the direct victim or persons who have suffered harm in intervening to
assist victims in distress or to prevent victimization.2

Victims may, then, be individual or collective; direct or indirect. In the following

sections the experience of Chile is analysed so as to critically examine the previ-
ously mentioned developments, and comparative references are made.

The victims of human rights violations in Chile

The repressive practices of the military dictatorship (1973–1990)

The Chilean armed forces overthrew the government of Salvador Allende on
11 September 1973. In the climate of the 1960s, Latin America’s younger genera-
 Transitional justice in Chile 231

tions tended to embrace radical politics, shifting the political balance towards the
left. In Chile, a coalition of left-wing parties was instrumental to the electoral vic-
tory of Allende in 1970. Following the 1973 coup d’état, the Chilean armed forces
ruled for sixteen and a half years, before handing over power to an elected civilian
candidate, on 11 March 1990.
During their time in power, the Armed Forces, led by General Augusto Pinoc-
het, dissolved the Chilean Parliament, banned elections, outlawed political parties
and unions, subjected Chilean universities to military tutelage, closed down inde-
pendent media and declared emergency rule. In short, they controlled the country
and stifled all dissent.
The Chilean dictatorship became notorious, worldwide, for the massive human
rights violations it perpetrated. The total toll of documented individual victims of
various forms of human rights violations in Chile, a country that by 2012 has just
under seventeen million people, is as follows:

a people who lost their lives (including political killings and forced disappear-
ances): 3,189;3
b people who suffered from political imprisonment: 37,050;4
c victims of torture: the Chilean truth commissions found that torture was sys-
tematically practiced against political prisoners;
d political exiles: around 20,000 persons were officially banned from the coun-
try and a much higher number sought refuge abroad;
e people who lost their jobs as civil servants or employees of State-related
corporations for political reasons: there is an official list of 157,0945 which
includes thousands of cases wrongly characterized as victims;
f people who lost their jobs in the private sector of the economy: an unknown
number;
g academics fired from their university positions: about 3,000;
h university students expelled: certainly many times more than the number of
academics who lost their jobs.

In addition, the whole population of Chile suffered from a suspension of its civil
and political rights. These restrictions were accepted by the supporters of the mili-
tary regime, many of whom felt they benefitted, as a trade-off, from political tran-
quillity, economic gain or both.

Assistance to the victims of human rights violations

On 6 Octobe 1973, just a few weeks after the coup d’état, a religious coalition
made of the Catholic Church, five other Christian denominations and the Great
Rabbi of Chile, formed the Committee of Cooperation for Peace in Chile (known
as Peace Committee), a human rights body charged with providing legal material
and moral assistance to the victims of human rights violation. In January of 1976,
under pressure from General Pinochet, the Archbishop of Santiago, Cardinal Raúl
232 José Zalaquett

Silva Henríquez, dissolved this committee and created in its stead the Vicariate of
Solidarity, an organ of the Archdiocese of Santiago. The Vicariate continued its
activities until the end of the military regime and it functioned for two more years
following the recovery of the democracy in Chile, providing documentation to the
National Truth and Reconciliation Commission created in May of 1990. It wound
down its operations in 1992.
Years after the birth of the Vicariate of Solidarity other human rights organi-
zations were created in Chile, although the Peace Committee and the Vicariate
remained the largest and the ones most sought after by the victims and their rela-
tives. The work of these two organizations was manifold. Central to their efforts
was to provide legal aid to the relatives of people imprisoned or subjected to
forced disappearances, through the presentation of habeas corpus writs6 and other
legal actions in thousands of cases. These actions were to no avail from a judicial
standpoint, but they had significant indirect consequences, for several reasons:

a the relatives of the victims felt supported if a lawyer was acting on their case;
b the habeas corpus petitions could give a clue as to the intentions of the politi-
cal police regarding the prisoner in question – if they responded to the queries
of the courts saying that no such person was detained, it meant that probably
the person was killed already or that they intended to kill him/her, whereas if
they acknowledged the detention but attempted to justify it, it indicated that
they would not kill the prisoner;
c to give up the legal actions would have meant abandoning the arena of justice;
d it was expected that the cumulative effect of so many thousands of petitions
would end up by persuading some judges or politicians that human rights viola-
tions were indeed taking place, and this did indeed happen with a few of them;
e gathering testimonies and documentation contemporary to the facts had a
special documentary value and could in the future prove of great importance.
In fact, in 1990 such records were made available to the National Truth and
Reconciliation Commission.

Other lines of work of the above mentioned organizations included processing infor-
mation about human rights violations and communicating them to church leaders
in Chile, to the correspondents of foreign media visiting the country, to non-gov-
ernmental human rights organizations and to UN and OAS (Organisation of Ameri-
can States) human rights bodies; seeking asylum in foreign embassies accredited to
Chile for people being persecuted and eventually helping them to relocate in another
country; providing legal assistance to workers arbitrarily dismissed from their jobs;
and helping unemployed people to organize small economic ventures.

Associations of victims or their families

Starting in 1975, under the umbrella of the Peace Committee, and later on the
Vicariate of Solidarity, relatives of victims of forced disappearances formed
 Transitional justice in Chile 233

an organization called Asociación de Familiares de Detenidos Desaparecidos.

It has functioned to this day, organizing protests, initiating legal actions to try
to find the truth concerning the fate met by the relatives’ loved ones and/or the
disposal of their remains, seeking for justice to be meted out and promoting
human rights. Later, similar organizations were created by relatives of victims
(or by victims themselves) of political killings, imprisonment, torture or loss of
jobs for political reasons.
During the late phase of the dictatorship, institutions dealing with the rehabilita-
tion of victims were created in Chile. Particularly worthy of note are the Instituto
de Salud Mental y Derechos Humanos (ILAS), which focuses on psychotherapy
for victims and La Fundación Protección a la Infancia Dañada por los Estados de
Emergencia (PIDEE), devoted to assisting children. They continue to be active,
now with a larger mandate.

The polarized stand concerning the victims

Opponents to the military regime, in Chile and the world, knew of the massive
human rights violations it committed. The de facto military authorities and their
supporters denied them, although harsh political repression was for them an essen-
tial tool to fight an insidious internal enemy. The military indoctrinated their rank
and file personnel, making them believe that the victims were less than human
(‘humanoids’ was the term used by Admiral José Toribio Medina, the head of the
Chilean Navy and a member of the Military Junta): people without principles,
terrorists… Demonization of people who are considered ‘internal enemies’ has
been common to many authoritarian regimes as a way of assuaging the possible
scruples of the men in uniform who were ordered to kill or torture them.

Transitional justice policies in Chile and their

focus on victims

The Southern Cone’s transitions to democracy

The Argentinean transition, in 1983, followed the defeat of that country by Britain
in the Falklands war, in 1992. By contrast, in Uruguay and Chile transition was
prompted by electoral defeat. In November of 1980, Uruguayan military rulers
held a referendum on a new Constitution. They lost. That electoral defeat led
to negotiations with civilian politicians and, four years later, to the election of
President Julio María Sanguinetti. In October of 1988, the Chilean Military Junta
called a yes-no plebiscite on the continuation of General Pinochet as president.
The ‘no’ option won. A year later a competitive presidential election was organ-
ized. Patricio Aylwin, leader of the opposition, was elected and inaugurated on
11 March 1990.
President Aylwin faced the restrictions inherent to the fact that the political
forces he represented had defeated the military regime at the ballot-box and within
234 José Zalaquett

the framework of rules of the game set by that government. They included the fact
that a Constitution passed in 1980 by the military dictatorship allowed General
Pinochet to remain as commander in chief of the Chilean Army until 1998. Given
this, President Aylwin promised that concerning human rights abuses he would
deliver ‘the whole truth and justice to the extent that it is possible’. This formula-
tion gave ground to criticism, in Chile and abroad. Probably the choice of words
was infelicitous. Yet political development in subsequent years have proved that
after the revelation of the truth about human rights violations, the scope for more
transitional justice measures was expanding with time.
Since Patricio Aylwin was inaugurated more than six years later than Argentina’s
Raúl Alfonsín, and more than five years after Uruguay’s civilian president, Raúl San-
guinetti, took over power, he could draw lessons from the transitional policies under-
taken by these countries. Argentina had taken energetic measures, including creating
a first Truth Commission with a mandate to cover the whole period of authoritarian
government in that country (1974–1983). Uruguay, where the transition was nego-
tiated with the military, had not done much. President Aylwin followed a middle
ground between these examples. He started by establishing a Truth Commission.
Twenty two years later, much has happened in Chile concerning transitional justice.
True, a lot has yet to be achieved. Notwithstanding that, by comparison with the forty
or so examples of transitional justice policies (or lack thereof) of many countries since
the 1980s, it may be asserted that Argentina and Chile are the two countries that have
gone the furthest concerning truth-telling, memory preservation, acknowledgement,
reparations, criminal justice and even institutional reform. In the case of Argentina
the transitional justice process has been marked by positive steps alternating with
drawbacks7. In the case of Chile, the transitional justice process has instead gone,
since 1990, through a gradual expansion, with a couple of periods of stagnation. By
the time of concluding this text (January 2013), both countries exhibit significant
advances in most aspects of their respective transitional justice processes.

The revelation of the truth concerning past human

rights violations
One of the most visible measures adopted as part of transitional justice policies has
been the establishing of Truth Commissions. The first widely known and effective
truth Commission was the Argentinean National Commission on the Disappear-
ance of Persons (known as CONADEP, its acronym in Spanish), created in Decem-
ber of 1983. The rationale of practice of forced disappearances that was developed
systematically in Chile by the Dirección de Inteligencia Nacional (DINA) and then
applied at a much larger scale in Argentina during the period 1976–80, was to
get rid of people considered dangerous and unredeemable, while at the same time
avoiding the bad image that would result from their outright execution.8
People who supported the military regimes in Argentina and Chile (not a small
percentage) did not believe – or they needed not to believe, so as not to have a
 Transitional justice in Chile 235

bad conscience – that their leaders were responsible for such heinous crimes,
or else they thought the violations they committed were much smaller in scale,
and at any rate justified as a lesser evil. Thus, both the Argentinean CONADEP
and the Chilean Truth and Reconciliation Commission (1990–91) focused on
revealing the truth about grave human rights violations that resulted in loss of
life and which remained secret or denied by the former dictatorial rulers. For the
objective of reconstructing the broken democratic system, it was critical to pro-
duce a credible official document about the truth of the human rights violations
of the past that no one in good faith could ignore or deny. That explains why in
both countries the respective truth commissions worked (for nine months each)
in chambers, in order to write a solid report, that was subsequently broadly
disseminated. Had they held public hearings during the course of their investi-
gations, much acrimonious social debate would have likely ensued, making it
improbable that a report could have been produced that met with widespread
acceptance.
The situation was quite different regarding the Truth and Reconciliation
commissions in South Africa (1995–98) and in Peru (2001–3). They held pub-
lic hearings which were broadcast by radio and television. In those countries
there was not much doubt about the ruthlessness of the apartheid regime (South
Africa) or about the fact that many crimes had been committed both by Shin-
ing Path and other guerrilla groups, and by the State forces fighting them. The
hearings held by the truth commissions of these two countries had the purpose
of giving a public voice to the victims. The process of truth gathering was, thus,
as important as the actual final report by each of these truth commissions or
perhaps more so.
Nearly three decades after CONADEP was created, there have been dozens of
examples of truth commissions in countries in different corners of the world (Hay-
ner 2010). They cover a wide range of organizational modes, mandates, method-
ology, resources. The quality and credibility of their reports vary greatly. A minor-
ity of them may be considered reasonably successful in their task of truth-telling.
In an even smaller number of cases, the truth commission’s work was followed
eventually by serious efforts in the areas of memory preservation, acknowledge-
ment, reparations, criminal justice for the gravest crimes and institutional reform.
The cases of Argentina and Chile belong in that small number.
In certain countries, the truth-telling process, reasonably well done as it might
have been, was intended by the national authorities to close the traumatic chap-
ter in the nation’s history, rather than to open the way for further transitional
justice measures.9

Accounting for individual victims: the question of figures

Truth commissions have dealt with the accounting of victims in different ways.
CONADEP, the Argentinean commission, produced a two-volume report in
236 José Zalaquett

September of 1984. The second volume consisted of a printout of 8,961 names

of individuals ‘disappeared’. The list was compiled from different lists elabo-
rated by human rights organizations.
Later on, a figure of 30,000 people subjected to forced disappearance in
Argentina has been claimed by the Mothers of Plaza de Mayo. Anyone publicly
disputing that figure may become suspect of belittling the Argentinean trag-
edy. Thus, visiting foreign journalist and Argentinean human rights practition-
ers refrain from doing so, even if they know that such figure is much inflated.
Needless to say, one person disappeared is one too many. Also, crimes against
humanity are such regardless of a precise body count. Yet if reference to figures
of victims is to be made at all, rigorousness is of the essence. It could well be
that the real toll of victims is greater than the one given by the CONADEP report
but certainly the total of 30,000 is too high. More accurate figures await future
research endeavours.
Perhaps one key factor accounting for the fact that CONADEP could just pub-
lish a printout of names, without describing the circumstances in which the indi-
viduals were abducted, was the fact that the hierarchy of the Argentinean Catholic
Church did not take action to protect human rights during that country’s mili-
tary dictatorship. In South and Central America, the Catholic Church and other
religious denominations were often the only independent institutions allowed to
function under the respective military dictatorships. Where the Churches or key
Church leaders decided to work for the protection of human rights, as in Sao Paulo
(Brazil) and Chile, in South America or El Salvador, in Central America, a meas-
ure of relief to the victims and their families could be provided, and the gathering
of relevant information was more complete. Where the Church hierarchy did not
or could not take action, as in Argentina, Uruguay or Guatemala, victims and their
families were left to fend for themselves. In the initial and harsher years of the
1976–1983 Argentinean dictatorship, work on behalf of victims rested mostly on
the valiant action of the relatives of some of them. Although a few civil society
human rights organizations existed in those early years, they could not systemati-
cally document human rights violations.
Given that Chile had Church-supported human rights organizations from the
beginning of the dictatorial rule, the work of the 1990–1991 Truth and Reconcilia-
tion Commission could account for the circumstances in which fatal victims were
killed or abducted. Thus, the total toll of 3,189 fatal victims during the period
1973–1990 documented by the Chilean Truth and Reconciliation Commission and
its successor commissions is widely accepted in Chile, with minimal variations.
The Salvadoran Truth Commission is an example of a truth-telling organ that
investigated and reported a number of emblematic or illustrative cases. This com-
mission published the names of the State agents and guerrilla fighters it deemed
responsible for them. In an Annex it published the list of cases of killings, disap-
pearances and other gross abuses that it came to know of. In this case, the sheer
number of actual victims10 probably prevented the Truth Commission from carry-
ing out an exhaustive accounting.
 Transitional justice in Chile 237

The Peruvian commission gave two overall figures. It stated that it received
information on 23,969 people killed or disappeared during the period 1980–2000.
It added that in many regions documentation was sorely lacking. Thus, using sta-
tistical methods, it estimated the total number of fatal victims of guerrilla fighters
or of State security forces to reach the number of 69,280 people or 2.9 times the
number of cases brought to its attention. Sound as this extrapolation may have
been, it was the target of criticism by certain opinion makers in Peru.

True, erroneous and false claims to victimhood

The widespread belief that victims do not lie largely bears out in reality. They do
not need to. Even more, they are often reticent to tell their stories in any detail, out
of self-restraint, shame or reluctance to relive painful episodes. The key point, of
course, is how to determine who is a victim in the first place.
Needless to say, the status of certified victim carries with it much legitimacy as
well as material entitlements. Because of that, next to the true victims there often
are many people who in good faith believe that their plight fits a given legal defi-
nition of victim. Others may know or suspect that they do not qualify as victims
but they feel that they did suffer much on other accounts during the period of
authoritarian rule and they ought to have some redress, whatever the manner of
obtaining it. And there are those who plainly take advantage of legal gaps or loose
proceedings to claim a status of victim they do not deserve.
In Chile, the Truth and Reconciliation Commission (1990–1) as well as the
Commission on Political Imprisonment and Torture (2003–5, re-opened in 2011)
received many more applications than they accepted. Perhaps most of the unsuc-
cessful applications were presented in good faith. It is generally considered that
the work of these commissions was rigorous. However, the loose laws and admin-
istrative mechanisms set up to determine the victims of arbitrary dismissal from
State-related bodies and corporations (exonerados politicos), as discussed later,
allowed for many thousands of wrong or fabricated claims to go through without
much vetting.11

Memory preservation
In recent years there has been an upsurge of monuments, plaques, inscriptions and
many other ways of commemorating and honouring the victims of human rights
violations and war crimes in many countries. An international Coalition of Sites
of Conscience was created in 1999.
In Chile, a wall of names with inscriptions listing all the fatal victims reported
by the Truth and Reconciliation Commission and its follow-up commissions was
built in the General Cemetery. Memorials including lists of names of fatal victims
have also been erected in centres of secret detention, torture and death; in sites
where clandestine tombs have been discovered and in places where opponents to
the military regime were found dead. In many union halls, professional guilds’
238 José Zalaquett

headquarters, schools and other such places within the Chilean territory, plaques
or monoliths bearing the names of associates who were victimized are often found.
A similar profusion of memorials is found in Argentina and in other countries. In
Chile, a Museum of Memory and Human Rights was inaugurated in 2010. It is
owned by a non-profit foundation. and receives funds from the State.

Acknowledgement
Individual acknowledgement of criminal guilt may not, of course be forced. The
South African Truth and Reconciliation Commission was legally empowered to
grant amnesty to perpetrators of politically motivated crimes who declared the full
truth of what happened. They were entitled to legal representation in the respec-
tive proceedings. By 1997 some 7,116 people had applied to receive this amnesty.
About two thirds of the applications were rejected. In Chile and elsewhere there
have been guilty pleas before the courts in some cases. Or else, some perpetrators
have admitted to their responsibility after being convicted or because they were
prompted by remorse even if they were never prosecuted; sometimes these admis-
sions took place decades following the actual events.
The acknowledgement of institutional responsibility for policies or directives
ordering criminal acts is of paramount importance in the process of founding or
rebuilding a broken society. Such admissions, whether by the military, politi-
cal parties, Churches or other institutions, help to rectify the evil doctrine once
espoused, whether explicitly or tacitly, by the organization, to affirm the values
that were transgressed and to recognize the dignity of the victims. Further, it opens
the way for a political agreement about the need to provide for reparations by
law.
It is important that such acknowledgement is done in a manner that represents
the institution in question. In Chile, after President Aylwin announced to the nation
the findings of the Truth and Reconciliation Commission on 4 March1991, politi-
cal parties and social organizations acknowledged that truth (many of them with
strong reservations and caveats, but they did). Nevertheless, General Pinochet
openly rejected the report on behalf of the Army and no frank acknowledgement
came from the other branches of the armed forces either. Eight years later, once
General Pinochet, by then retired from the command of the Army, was under house
arrest in London, facing an extradition request from a Spanish Judge, the Chilean
government agreed with the Chilean armed forces, then under the command of
a new generation of military men, to create a Round Table Discussion (Mesa de
Diálogo) on human rights. This panel gathered together high-ranking officials,
human rights lawyers, religious leaders and academics. Its final statement, issued
in June of 2000, acknowledged the human rights violations committed during
the military government in Chile. Although many deemed that acknowledgement
to be not sufficiently categorical, it did open the way to further pronouncements
by military leaders culminating, in 2003 with a document signed by the then
Army Chief, General Cheyre, titled ‘Never Again’ (Nunca Más), an expression
 Transitional justice in Chile 239

that evokes the determination not to let the Holocaust happen again and that has
powerful symbolic connotations in transitional justice milieux. Actually, days
prior to the release of the report by the National Commission on Political Impris-
onment and Torture, in 2004, Chilean military commanders rushed to acknowl-
edge it, even before they could know its content.
In Argentina, in 1995, General Martín Balza, then the Army Commander,
acknowledged by means of a television appearance the human rights viola-
tions committed during the 1976–1983 military dictatorship. He amplified this
acknowledgement later on. Honest as it was, this admission was more personal
than institutional and he was spurned and isolated by his military comrades, both
retired and in active service.

Reparations
A major landmark on reparations for human rights abuses was the study produced
in 1993 by the Special Rapporteur on this topic for the Sub-commission on Pre-
vention of Discrimination and Protection of Minorities of the United Nations’
Commission on Human Rights (van Boven 1993). On the basis of this document,
the General Assembly of the United Nations adopted, in 2005, a resolution pro-
claiming basic principles applicable to reparations.12 Several additional studies
were later published on the topic of reparations (de Greiff 2006; Nash 2009).
Reparations may consist of: (a) restitution, whenever it is possible to restore the
victim to the original situation; (b) compensation for assessable damage; (c) reha-
bilitation; (d) satisfaction, including public apologies, truth, justice and measures
aimed at restoring the victim’s dignity; and (e) guarantees of non repetition, which
comprise a variety of preventive measures and institutional reform. Reparations
may also be individual or collective, material or symbolic.
Reparations, including preventive measures and some institutional reform,
have been made the main aspect of the transitional justice policies of Morocco.
The Truth Commission of this country, called the Equity and Reconciliation com-
mission (2004–2005) laid the ground for such reparative measures.
Chile and Argentina are among the countries which have provided for a whole
range of reparations. In Argentina, a number of laws established compensations
for victims of political imprisonment; for relatives of people subjected to forced
disappearances; for people born of a mother who was in detention and whose
real identity was supplanted; and for military personnel who suffered from repris-
als for refusing to join the coup d’état. Many measures of reparation have been
applied in Chile (Lira and Loveman 2005), as listed below.

a Relatives of fatal victims (killed or ‘disappeared’): a pension for the closest

relatives; scholarships for the victims’ children; health services; dispensation
of military service for the victims’ children and grandchildren; allocation of
State funds for memorials. These reparations were enacted by law 19.123 of
1992 and law 19.980 of 2004.
240 José Zalaquett

b Political imprisonment and torture: laws 19.992 of 2004 and law 20.405 of
2009 provided a pension for the victims, plus health, educational and housing
benefits, and dispensation of military service for their children.
c People dismissed from their State-related jobs for political reasons (exonera-
dos politicos): law 19.234 of 1993 and law 19.582 of 1998 instituted either
pensions or the coverage of gaps in their pension plans’ deposits.
d Exiled people who returned to Chile: law 18,894 of 1990, law 19.074 of 1991
and law 19.128 of 1992 granted such people exemption from customs duties
and other facilities for their reinsertion in the country.
e Law 19.568 of 1998 ordered restitution (or compensation) of property from
political parties, trade unions and other organizations that had been confis-
cated by the military regime, as well as giving back their jobs in State univer-
sities or civil service to some people dismissed for political reasons during
the military dictatorship.
f Symbolic measures were implemented, mostly those mentioned earlier.
g Prevention and guarantees of non repetition: Chile has ratified most inter-
national human rights conventions, reinforced the principle of human rights
protection in its Constitution, amended some laws and created some relevant
State organizations. Among the later are the Consejo para la Transparencia,
established by law 20.285 of 2008, which must oversee the implementation of
the right of access to public information, and the National Institute of Human
Rights. Some defective laws have yet to be amended or repealed, the creation
of an office of Ombudsman is still pending and the incorporation of human
rights in educational programmes is sorely lacking.

Justice
Criminal justice is commonly the most arduous of transitional justice tasks in
cases where the perpetrators of political crimes are still a force to be reckoned
with. On the other hand, where they have been completely defeated by feat of
arms, there is a strong possibility of a non-impartial ‘victor’s justice’. This is a
reminder that in practice transitional justice’s policies may be better or worse but
hardly optimal.
The Statute of Rome of 1998 that established the International Criminal Court
reiterates the principle of the 1968 Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes against Humanity.13 Other than
for these egregious crimes, measures of amnesty and forgiveness are not prohib-
ited. However, the philosophy of transitional justice requests that if such measures
are to be granted to less than enormous crimes, they must be consistent with the
purpose of building or reconstructing a just society following a traumatic national
period (Zalaquett 1999). Nowadays many human rights activists espouse the view
that criminal justice must be meted out for human rights violations, whether or not
they may be characterized legally as war crimes or crimes against humanity, and
regardless of other considerations.
 Transitional justice in Chile 241

As to the relationship between the rights of victims and criminal justice, three
developments must be noted, particularly in the Americas. In countries such as
Argentina and Chile there has been a considerable increase in the numbers of
criminal investigations, proceedings and convictions. In March 2012 the Chief
Justice of Chile’s Supreme Court revealed that there were 1,268 judicial investi-
gations still open concerning human rights violations. A study conducted by the
Universidad Diego Portales’ Human Rights Centre reported that by the end of
2009 there had been 185 people convicted for human rights violations by criminal
courts, of whom 59 were still serving their penalties. This result has been made
possible by the persistent action of human rights lawyers and organizations of
relatives of victims; by the truth-telling policies that contributed to an increased
social awareness concerning past State crimes and about the moral hierarchy of
human rights; and by the changing composition of the Chilean judiciary through
a natural process of generational renewal over the years.
There is also a greater sensitivity about the rights of the victims of human rights
violation, even among judges. Yet the articulation of such rights has been effected
mostly by international courts. In the Inter-American Court’s judgement of 25
November 2000 in the Bámaca Velázquez v. Guatemala case, it is read, in para-
graph 197, that:

… as a result of the disappearance of Bámaca Velásquez, the State violated

the right to the truth of the next of kin of the victim and of society as a whole.
In this respect, the [Inter-American] Commission [of Human Rights] declared
that the right to the truth has a collective nature, which includes the right of
society to ‘have accesses to essential information for the development of dem-
ocratic systems’, and a particular nature, as the right of the victims’ next of kin
to know what happened to their loved ones, which permits a form of repara-
tion. The Inter-American Court has established the obligation of the State to
investigate the facts while there is uncertainty about the fate of the person
who has disappeared, and the need to provide a simple and prompt recourse
in the case, with due guarantees. Following this interpretation, the Commis-
sion stated that this is a right of society and that it is emerging as a principle
of international law under the dynamic interpretation of human rights treaties
and, specifically, Articles 1(1) 8 25 and 13 of the American Convention.

Judge Cançado Trindade and Judge Salgado Pesantes wrote separate opinions
elaborating on the right to truth. The Inter-American Court has also pronounced
on a right of the victims to justice. In its 2001 judgement on the case Barrios Altos
v. Peru, it stated that:

The so-called self-amnesties are, in sum, an inadmissible offence against

the right to truth and the right to justice (starting with the very access to
justice). They are manifestly incompatible with the general – indissociable
242 José Zalaquett

– obligations of the States Parties to the American Convention to respect

and to ensure respect for the human rights protected by it….

Reconciliation
Further to the Chilean Truth and Reconciliation Commission other truth commis-
sions have adopted the same name, notably those of South Africa, Peru, Liberia
and Canada. The inclusion of the word ‘reconciliation’ in the name of the Chilean
Commission was meant to suggest that the ultimate purpose of the truth-revealing
exercise was to advance towards the aim of having a reconciled society, after
an extremely divisive period when gross human rights violations were commit-
ted. High-minded as this intention may be, it has been subject to criticism.14 It is
pointed out that the word ‘reconciliation’ has religious overtones. It has been said
also that reconciliation is not quantifiable – as truth-telling, memorials, compen-
sation or criminal justice are – and it is therefore imponderable, a kind of ‘North-
ern star’ to guide navigation.15
Reconciliation at the individual level, between a given victim and his or her
victimizer, is a personal matter, which no public policy may address. Social recon-
ciliation, on the other hand, may be understood as the reconstruction of a broken
social contract; or as the attainment of a state in society where the recurrence of
past atrocities is deemed unthinkable; or as a cultural development in society that
leads everyone to recognize his or her opponents not as enemies but as adversaries
who are entitled to the enjoyment of human rights; or as a situation that permits
former victims to relate to their former perpetrators from a position of psychologi-
cal and personal safety.

Conclusions
The young field of transitional justice represents an attempt to deal with a moment
of political ethics that until the 1980s had not been systematically addressed –
that of the reconstruction of a society following a period of breakdown marked
by human rights violations and/or war crimes. Largely because of its relative
newness, this field has attracted much political and academic attention as well as
controversy. In good measure, transitional justice is rooted in the modern notion
of human rights and its main focus on the dignity and inalienable rights of all
persons. This helps to explain why, although its ultimate purpose is to build or
rebuild a sustainable, just political system on the wreck left by conflict and inhu-
man practices, its main focus is on the victims of such criminal acts. All aspects of
transitional justice – truth-telling, memory preservation, acknowledgement, repa-
rations, criminal justice and the purported superior objective of national reconcili-
ation – may be examined from the standpoint of the victims’ needs and rights.
The traditional notions of victim has thus, acquired new connotations within the
framework of transitional justice.
 Transitional justice in Chile 243

The case of Chile over the period 1990–2012, one of the richest national
experiences in transitional justice, illustrates the main lessons and dilemmas that
this field presents in relationship to its central focus on victims. Other national
experiences similarly illuminate the many complexities of transitional justice.
As a general conclusion it may be said that much conceptual, legal, moral and
practical progress has been made with regards to the protection of victims of gross
State abuse. Yet as with most human endeavours, this progress follows at times
a meandering course. The necessary emphasis on moral imperatives does lead at
times to unyielding propositions; unavoidable political considerations and debates
may be unduly disregarded in the name of high-minded principles; the righteous-
ness of the cause of tending to the victims has sometimes resulted in a relaxation
of fact-finding standards and in exaggerated claims and even fraudulent ones.
Law and jurisprudence at the national and international levels change fast in
their move forward regarding truth-telling, justice and the concern for victims.
This is mostly a salutary development. Yet, it must be refined and consolidated in
the time ahead so as to make transitional justice claims not only morally right but
legally and intellectually stronger.

Notes
1 In the view of this author the expression ‘transitional justice’, although widely accepted,
is not entirely appropriate. It was rst proposed in the early 1990s by Professor Ruti
Teitel, from the New York School of Law, who has so titled her book on this topic (Tei-
tel 2000). Later on it was adopted and disseminated by the publication of an inuential
three-volume compilation of theories, legal norms and cases (Kritz 1995), and subse-
quently by the creation of the International Center of Transitional Justice, in 2001, the
prime non-governmental organization dealing with this issue. The term ‘transitional
justice’ may give raise to some confusion: it may suggest that justice itself is transient;
further, it may lead to the belief that the sole or paramount purpose of transitional
policies is to mete out criminal justice. Of course, justice is of prime importance when
addressing a legacy of State atrocities, but the expression ‘transitional justice’, does
not encompass truth-telling, memory preservation, acknowledgement and reparations,
in addition to justice. Granted, it is hard to convey all these desirable connotations in
one brief term; probably that fact has contributed to the current broad acceptance of
‘transitional justice’.
2 Point V.8 of the Basic Principles and Guidelines on the Right to a Remedy and Repara-
tion for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law. General Assembly Resolution 60/147 of
16 December 2005.
3 The report of the Comisión Nacional de Verdad y Reconciliación (nicknamed The Rettig
Commission), issued in February of 1991 accounted for 2,279 fatal victims. The report
of its successor Corporación Nacional de Reparación y Reconciliación, published in
1996, added 899 victims. Another 17 victims were added by a report of the reopened
Valech Commission (see Note 4 below) issued in 2011. On the other hand, since 1991
it has become known that six cases had been wrongly characterized as victims.
4 The Report of the Comisión de Prisión Política y Tortura (nicknamed The Valech Com-
mission), issued in 2004, listed 27,255 victims of political imprisonment. This commis-
244 José Zalaquett

sion was reopened in 2011 and charged with reviewing new applications of the Rettig
Commission as well (see Note 3 above). As to victims of political imprisonment, the
2011 report added 9,795 cases.
5 The website of the ofce of the Chilean Ministry of the Interior in charge of the programme
to compensate this category of victims (www.oep.gov.cl) has been on maintenance,
throughout the year 2012. The author obtained this gure by calling the said ofce.
6 Habeas corpus writs (in Chile known as “recursos de amparo”) are legal petitions
addressed to a High Court to correct an illegal detention or to put an end to it.
7 Before relinquishing power, the fourth and last Argentinean military junta to rule the
country since 1976, passed, in September of 1983, an amnesty law. This law was
declared null by law 23.040, in December of the same year, under the elected govern-
ment of Raúl Alfonsín. In February of 1984 another law was enacted providing that the
State crimes perpetrated by the military would be tried by the Supreme Council of the
Armed Forces. Predictably, this Council did not indict the military leaders. The trial
moved then to the (civilian) Federal Court of Appeals which convicted several former
military junta members. Later, President Alfonsín, under military pressure, had two
laws approved to prevent more trials of the military: the so-called Full Stop Law (Ley
de Punto Final) of December 1986 and a Due Obedience Law in June 1987. In 1989,
president Menem issued several decrees pardoning many people, including the con-
victed military junta members and guerrilla ghters. In August 2003, the Argentinean
Senate annulled the Full Stop Law and the Due Obedience Law of 1987. In July of
2007 the Argentinean Supreme Court declared unconstitutional the decrees of pardon
issued by President Menem in 1989.
8 The Chilean newspaper El Mercurio reported on page A8 of its edition of 14 April
2012, that that very day a book titled Disposición Final, by the journalist Ceferino
Reato, was being launched in Argentina. In it, Jorge Rafael Videla, former leader of
the Argentinean military junta, is reported to have acknowledged that the Argentinean
military killed some 7,000 to 8,000 civilians and that ‘it was necessary that this was
done in a secret way, so that the society did not know of it’.
9 In the view of this author, such was the case with the truth commissions of El Salva-
dor and Guatemala. In Morocco, the truth commission was meant to identify victims
who would benet from reparations and these reparations were intended to ‘close the
chapter’.
10 The most repeated estimate is 70,000 although a fully substantiated estimate also awaits
future research.
11 The Chilean government announced that having reviewed 50,000 les of people certi-
ed as exonerados politicos, 18.7% of more than 157,000 showed as ‘anomalies’. See
newspaper El Mercurio of 8 April 2012, page C2. The gure is disputed but not the fact
that very many applicants were wrongly certied.
12 General Assembly resolution 60/147 of 16 December 2005.
13 Following the denition of the Crime of Aggression that had been postponed by the
Statute of Rome, at the Kampala Conference of 2010, the non-applicability of statutory
limitations extends to this crime as well.
14 An account of this criticism may be found in Daniel Philpott’s ‘Religion, Reconcilia-
tion, and Transitional Justice: The State of the Field’ Social Science Research Council
working paper of 17 October 2007.
15 This metaphor was used by Chilean professor Agustín Squella in an unpublished con-
ference given in Santiago, in 1996.
16 In addition to the bibliography detailed in this section, the author has drawn from his
own memories of the described events, his personal diary and his private papers.
 Transitional justice in Chile 245

Bibliography16
de Greiff, P., 2006. The Handbook of Reparations. New York: Oxford University Press.
Hayner, P., 2010. Unspeakable Truths, 2nd edition. New York: Routledge, Inter-American
Institute of Human Rights, 1999. Truth and Justice: In Search of Reconciliation in
Suriname. San José. IIDH.
Lira, E, and Loveman, B., 2005. Políticas de Reparación. Chile 1990–2004. Santiago:
LOM ediciones.
Mainwaring, S., 1989. Transitions to Democracy and Democratic Consolidation:
Theoretical and Comparative Issues. Working paper No. 130. South Bend: The Hellen
Kellog Institute for International Studies.
Nash, C., 2009. Las Reparaciones ante la Corte Interamericana de Derechos Humanos
(1988–2007), 2nd edition. Santiago. Centro de Derechos Humanos, Facultad de
Derecho, Universidad de Chile.
O’Donnell, G., Schmitter, P. and Whitehead, L., 1986. Transitions from Authoritarian Rule:
Prospects for Democracy. Baltimore: Johns Hopkins University Press.
Philpott, D., 2012. Just and Unjust Peace. An Ethic of Political Reconciliation. New York:
Oxford University Press.
Quinn, J., 2010. The Politics of Acknowledgement. Truth Commissions in Uganda and
Haiti. Vancouver: UBC Press.
Rosenberg, T., 1991. Children of Cain. Violence and the Violent in Latin America. New
York: W. Morrow and Co.
van Boven, T., 1993. Study Concerning the Right to Restitution, Compensation and
Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental
Freedoms. U.N. document E/CN.4/sub.2/1993/8, Truth Commissions: A Comparative
Assessment, 1996. Cambridge: Human Rights Program, Harvard Law School.
Weber M., 2004. The Vocation Lectures. ‘Science as a Vocation’, ‘Politics as a vocation’.
Indianapolis: Hackett Pub Co.
Zalaquett, José, 1999. Truth, Justice and Reconciliation: Lessons for the International
Community. In: Cynthia Arnson, ed., Comparative Peace Processes in Latin America.
Woodrow Wilson Center Press/Stanford University Press.

Truth Commission reports

Argentina: Nunca Más. Informe de la Comisión Nacional de Desaparición de Personas.
(revised version). Buenos Aires. Eudeba, 2006.
Chile: Report of the Chilean National Commission on Truth and Reconciliation. 2 vols.
Notre Dame, IN. Center for Civil & Human Rights. 1993.
Chile: Informe de la Comisión Nacional sobre Prisión Política y Tortura. Santiago. La
Nación, 2004.
Colombia: Comisión Nacional de Reparación y Reconciliación. Recomendación de
Criterios de Reparación y de Proporcionalidad Restaurativa. Bogotá. CNRR, 2007.
El Salvador: Informe de la Comisión de la Verdad para El Salvador. 3 vols. N.p. 1993.
Guatemala: Nunca Más. Guatemala, Guatemala: ODHAG, 1998.
Honduras: Informe de la Comisión de la Verdad y La Reconciliación. 2 vols. San José.
Editorama, 2011.
246 José Zalaquett

Marruecos: La Verdad, la Equidad y la Reconciliación. Coquimbo, Chile: Centro

Mohammed VI, 2009.
Panama: La Labor de la Comisión de la Verdad. Informe Especial. Panama. Comisión de
la Verdad de Panama, 2002.
Peru: Informe Final de la Comisión de la Verdad y Reconciliación. 5 vols. Lima. IDEHPUCP,
2008.
South Africa: Truth and Reconciliation Commission of South Africa. 5 vols. Cape Town.
CTP Book Printers, 1998.

Additional references
Aspen Institute, 1989. State Crimes. Punishment or Pardon. Queenstown, MD. Aspen.
Centro Internacional para la Justicia Transicional, 2003. Ensayos sobre Justicia Transicional.
New York: ICTJ.
Cohen, S., 2001. States of Denial. Cambridge: Polity Press.
Dyzenhaus, D., 1998. Judging the Judges, Judging Ourselves. Truth, Reconciliation and the
Apartheid Legal Order. Oxford: Hart Publishing,
Forsberg, T, and Teivanen, T., 1998. The Role of Truth Commissions in Conflict Resolution and
Human Rights Promotion. Finnish Institute of International Affairs Working Papers 10.
Fundación Social, 2005. Compilación de Instrumentos Internacionales, doctrina y
Jurisprudencia Sobre Justicia, Verdad y Reparación. Bogotá, Colombia: Geminis.
Gray, D., 2010. A No-excuse Approach to Transitional Justice: Reparations as Tools of
Extraordinary Justice. Washington University Law Review, 87(5). pp. 1043–1103.
Hayner, P., 2008. Verdades Innombrables. Mexico City: EFE.
Kritz, N., 1995. Transitional Justice. Washington: US Institute of Peace.
Minow, M., 1999. Between Vengeance and Forgiveness. Boston: Beacon Press.
Rettberg, A., 2005. Entre el Perdón y el Paredón. Preguntas y Dilemas de la Justicia
Transicional. Bogotá: Ed. Uniandes.
Rosenberg, T., 1995. The Haunted Land. Facing Europe’s Ghosts After Communism. New
York: Random House.
Rott-Arriaza, N., 1999. Human Rights in Political Transitions: Gettysburg to Bosnia, New
York: Zone Books.
Stratmann, H., 1999. Excusas por la Verdad. Desapariciones y las Consecuencias.
Amsterdam: HOM.
Teitel, R., 2000. Transitional Justice. New York: Oxford University Press.
Walling, C. and Waltz, S., 2011. Human Rights, From Practice to Policy. Ann Arbor, MI.
U. of Michigan.
Chapter 12

The Transitional Justice Imaginary

Uncle San, Aunty Yan and victim participation
at the Khmer Rouge Tribunal
Alexander Laban Hinton1

Uncle San, a Cambodian villager in his mid-sixties, is living suspended in time. He

is caught in a state of traumatic dysfunction, unable to escape from a violent past
that afflicts him with nightmares. He is like many other rural Cambodians of his
generation and, through metonymy, could even be seen as a symbol of Cambodia
itself. Who is Uncle San? He is a figment of the transitional justice imaginary.
More specifically, Uncle San is the protagonist in a thirty-four page booklet
entitled ‘Uncle San, Aunty Yan, and the KRT [Khmer Rouge Tribunal]’, the pages
of which are divided (on the left-hand pages) by visual representations accompa-
nied (on the right-hand pages) by explanatory text. It was produced in 2008 by
the Khmer Institute of Democracy (KID), a non-governmental organisation in
Cambodia conducting outreach for the Khmer Rouge Tribunal (KRT), officially
known as ‘The Extraordinary Chambers in the Courts of Cambodia’ (ECCC).
After several years of negotiation, this UN-backed hybrid court was established
in 2003 to try the surviving leaders of the Khmer Rouge. Upon taking power in
Cambodia on 17 April 1975, this group of Maoist-inspired revolutionaries set out
to launch a ‘Super Great Leap Forward’ that would outdo all other communist
revolutions, even that of their close socialist ally, China. By the time of its down-
fall on 6 January 1979, the policies the Khmer Rouge implemented, ranging from
collectivisation and forced labour to increasingly frequent purges of suspected
enemies, had resulted in the death of perhaps 1.7 to 2.2 million of Cambodia’s 8
million inhabitants, almost a quarter of the population, due to starvation, overwork,
malnutrition or execution (see Kiernan 1996; Chandler 1999; Hinton 2005).
The ECCC, whose mandate is to try the ‘senior leaders’ and those ‘most respon-
sible’ for the atrocities that took place during this period, began operation in 2006.
The court includes international and Cambodian officials in all major offices,
including co-lawyers, co-prosecutors and co-judges.2 It is one of a number of
‘hybrid’ tribunals established in the 2000s (other hybrid tribunals include those of
Kosovo, Sierra Leone, Timor Leste, and Lebanon) to offset some of the problems
that emerged with the ad hoc tribunals of the 1990s (the International Criminal
Tribunal for the former Yugoslavia and Rwanda), particularly in terms of cost,
duration and proximity to the populations involved in given conflicts.
248 Alexander Laban Hinton

Hybrid tribunals, like their ad hoc counterparts and other modes of redress such
as truth and reconciliations commissions, are often referred to as transitional jus-
tice mechanisms. The field of transitional justice emerged in the late 1980s and
early 1990s as the Cold War was ending and a number of places, ranging from
Southern Cone states to Eastern European countries, were grappling with recent
violent pasts while seeking a way forward, in what was often referred to as ‘demo-
cratic transition’.
The term ‘transitional justice’ emerged in the post-Cold War ‘new world order’,
as criminal tribunals, truth and reconciliation commissions, memorialisation and
reparation efforts, and institutional reforms, emerged as favoured mechanisms
for providing some sort of redress and sense of justice that would enable these
countries under transition to move from troubled pasts to better futures.3 Such
transitional justice mechanisms directly grapple with the legacies of the past and
are often said to have a preventative dimension, diminishing the potential for the
recurrence of violence and seeking to ‘combat impunity’, promote the ‘rule of
law’, reveal ‘the truth’ and educate the larger populace.

The Transitional Justice Imaginary

In this chapter I argue that such transitional justice mechanisms are frequently
characterised by a particular social imaginary, one that is manifest in the
booklet ‘Uncle San, Aunty Yan and the Khmer Rouge Tribunal’. By social
imaginary, I refer to an imagining manifest in a set of interrelated discourses,
practices, and institutional forms that help generate a sense of shared belong-
ing among a group of people – in this case the transitional justice community
(which is itself is part of the larger ‘international community’) in the broad-
est sense. This definition draws from Benedict Anderson’s (2006) notion of
imagined communities as well as related theorisations of the social imaginary,
especially that of Charles Taylor (2004; see also Castoriadis 1987), while also
being more slightly inflected by notions of fantasy, misdirection, or, in its
strongest form, false consciousness of a non-Marxist sort. Such imaginaries
may be gleaned from a variety of sources, ranging from ritual practices to
myths and, as in this case, stories.
‘Uncle San, Aunty Yan, and the KRT’ is one such story in which this transitional
justice imaginary is condensed. While not the only imaginary circulating and vari-
able across contexts, the transitional justice imaginary is widespread and implicit in
much of what is said and done within transitional justice domains like the KRT. At
its core, the transitional justice imaginary revolves around the imagined transfor-
mation of post-conflict societies from a negatively marked spatiotemporal modal-
ity of being to a positively valued future, with the transitional justice mechanism
serving as the vehicle of change. In this imaginary, the past is constructed as one
of contamination, violence, savagery, authoritarianism and backwardness, while
the future contains the opposite qualities (purity, peace and reconciliation, civilisa-
tion, democracy and progress). In contrast to the oft-heard truth claims associated
 The Khmer Rouge Tribunal 249

with such transitional justice mechanisms, this highly normative construction erases
the very critical historical and sociocultural complexities that are supposed to be
unpacked even as it posits an oversimplified ‘good’ of the liberal democratic society
and rights-bearing subject.
Accordingly, the transitional justice imaginary is normative (i.e. it is associated
with certain truth claims and moral-laden assumptions), performative (i.e. through
its enactment, people constitute an imagined community) and productive (i.e. the
imaginary produces certain subject positions and types of being). The imaginary
is also characterised by a particular temporality, what I have called ‘transitional
justice time’ (Hinton 2013) premised on a value-laden pre-post state of conflict
and teleological movement between them. In the transitional justice imaginary,
time is linear and progressive.
Transitional justice imaginary is not monolithic and varies across localities
and individuals. Nevertheless, I would argue that it can be found in most transi-
tional justice contexts, including the KRT, as the members of the ‘international
community’ and local elites constitute themselves through the assertion of a
transitional justice imaginary – one that may differ significantly from local ver-
naculars.4
More specifically, implicit within transitional justice time is a highly norma-
tive concept of past and present. Violent pasts are delimited and narrowed, eras-
ing historical complexities and suggesting an essentialised notion of regressive
being, epitomised by phrases such as ‘failed states’ or indexical registers equat-
ing a country with violence and death (for example, the frequent juxtaposing of
countries like Cambodia next to images of skulls). This foreshortened vision of
the authoritarian past is set against an imagined liberal democratic future, with
transitional justice as the mechanism of teleological change. This splitting of
past and future, mediated by a liminal present, is linked to a series of binary
oppositions, such as contamination/purity, savagery/civilisation, authoritarian/
democratic, and so forth. Within this timescape, people like Uncle San, and the
larger group of Cambodians victims for whom he stands, are imagined in certain
sorts of ways.
Finally, the transitional justice imaginary is also what we might call ‘redac-
tic’ (Hinton 2013), a missing third piece in the oft-heard binary that juxtaposes
legalism against the didactic dimensions of transitional justice. Both legalism and
didactic narratives involve redacting, an editing out. The term redact is etymologi-
cally related to the Latin redigere, which means ‘to drive or send back, return, to
ring back, restore, to convert, reduce, to bring (into a condition), to bring (under a
category), to bring into line’. This term nicely captures several dimensions of the
work of the transitional justice imaginary, which involves a ‘bringing into line’ of
thought and agency, a ‘reduction’ of complexity into a more manageable form, a
‘driving back’ of messiness and complexity that may upset the narrative in-the-
making, a ‘conversion’ of subjectivity, and an ‘editing out’ of unwanted historical
pasts and local experience and practices that do not jive with normative assump-
tions being asserted.
250 Alexander Laban Hinton

Uncle San and the Transitional Justice Imaginary

Uncle San lives within the transitional justice imaginary and moves through its
spatiotemporal horizons. The first line of the booklet delimits a temporal horizon
of the past, as the introductory note (p. 2) explains:

The Khmer Rouge Regime is generally recognised as the time between 17

April 1975 and 6 January 1979. This was a time in Cambodian history where
the Communist Party of Kampuchea held control over the entire country and
committed many crimes against the Cambodian people.

Here, at the very start of the booklet, time is immediately constructed in three
interlinked ways. First, in terms of periodicity, time is placed within a delimited
period 17 April 1975 to 6 January 1979, or the period of Khmer Rouge rule in
Cambodia. This interval is then coloured in two ways. On the one hand, it con-
stitutes a juridical frame, or what is called the temporal jurisdiction of the court.
On the other hand, this interval is marked as one of criminality as a criminal act
(‘many crimes’) has been committed by a perpetrator (the Communist Party of
Kampuchea) against a victim (‘against the Cambodian people’). There is no room
in this temporal horizon for ambiguity; there are perpetrators and victims and
nothing in between. Transitional justice time does not cope well with ‘grey zones’.
This delimitation of time is further bound by a spatial framing, as the crimes take
place in a particular national space, as opposed to a geopolitical space that is
thereby erased, suggesting the problem was solely internal to Cambodia.
The booklet provides a quick overview of what happened in this spatiotemporal
context through the eyes of Uncle San, a moustached Cambodian villager who
wears a chequered yellow Cambodian scarf slung over his right shoulder. ‘Hello,
my name is San,’ his story begins. ‘I am 64 years of age… I have lived in this
village since I was young, but during the Khmer Rouge Regime I was forced to
live in another area’ (p. 4). The accompanying graphic shows Uncle San sitting
cross-legged on a table-like platform telling several of his fellow villagers about
his forcible eviction. The importance of his experience is emphasised by the atten-
tiveness of those gathered around, including two young children, as he tells his
story.
Uncle San’s experiences could be those of any Cambodian village survivor.
Indeed, the Director of the KID told me that they selected the names Uncle San
and Aunty Yan because they were ‘common names among [the] rural population
… very poor, grassroots type of names’.5 Individual difference is thereby com-
pressed as Uncle San’s experiences could be those of any rural Cambodian survi-
vor. The image asserts Uncle San’s everyman status – he stands as an emblem of
the Cambodian survivor-victim and, through metonymy, of Cambodia itself.
And he, and Cambodia by extension, exists in a deeply troubled state, one that
suggests a lack and failure (‘a failed state’). On page 5 of the booklet, Uncle
San dozes fitfully in a hammock, dreaming about the Khmer Rouge past, which
 The Khmer Rouge Tribunal 251

is represented by four recollections: his stealing a crab and the Khmer Rouge
torching a village, menacing two Buddhist monks being forcibly disrobed, and
executing a man who looks like Uncle San in a mass grave filled with skulls. As
in earlier shots, all of the characters resemble the moustached Uncle San. He is
everyone and yet no one. He tells us on p. 6:

During the Khmer Rouge Regime, I was forced to plant rice all day long.
Once, I took a crab from the field and was beaten for doing so. I remember the
mistreatment of monks, hard work, poor food, tortures, and killings. When
it was over and I went back to my village, my home was destroyed. What
makes me most sad is that all of my family members were killed. Since then,
I have bad dreams every night about what happened.

In the next frame, Uncle San sits chatting with Aunty Yan and some other vil-
lagers in a rustic, traditional village space, one that lacks signs of modernity (for
example, electricity, cars, motorcycles, industry, upscale commodities). ‘Usually,’
Uncle San tells us in the accompanying text, ‘I try not to think about the past
by spending my time planting rice, going to the pagoda, and chatting with my
neighbours.’ Aunty Yan, it turns out, is a childhood friend who also lost her family
during the Khmer Rouge regime and with whom Uncle San often shares meals or
drinks tea.
If time is partly one of criminality in the booklet, it also suggests a pre-existing
stasis. Perpetrators bear the impurity of their act, an unchanging stigma marking
them as nefarious. Victims, in turn, remain wounded and unhealed, awaiting res-
cue. Thus Uncle San reveals, ‘Since then, I have had bad dreams every night about
what happened’ and he tries ‘not to think about the past’ by keeping busy. This
spatiotemporal freezing is indexed grammatically, as the temporal marker, ‘since
then’ (chap teang pi pel nuh mok) frame the pronoun ‘I’ (khnom). Uncle San,
and, as the everyman, by implication all Cambodian victims of the Khmer Rouge,
lives suspended in a past of traumatic experience, which persists, unchanging,
through a set of symptoms, including re-experiences (flashbacks, bad dreams and
nightmares), avoidance behaviours (trying ‘not to think about the past’), and, as
the frowning photo of him in the hammock suggests, hyper arousal (difficulty
sleeping and feeling tense).6
Indeed, there is a direct relationship between transitional justice time and one
of the subject positions produced by the transitional justice imaginary, that of
‘the trauma victim’. We could even speak of a sort of pop-psychology ‘trauma
imaginary’ that overlaps with the transitional justice imaginary. In this trauma
imaginary, individuals are viewed as existing in a state of regressive dysfunction,
trapped by the seeds of past trauma. These ‘seeds’ manifest themselves through
the aforementioned set of symptoms (the ‘shoots’ of the trauma ‘seeds’). The
trauma victim is more or less helpless until saved.
Within the transitional justice imaginary, the helpers are a legion of psychosocial
specialists who treat trauma victims in post-conflict situation. But the transitional
252 Alexander Laban Hinton

justice mechanism itself is depicted as constituting a form of treatment, evident

in the frequent assertion that transitional justice mechanisms will help the soci-
ety ‘heal’. The post-conflict society is metonymically represented by the ‘trauma
victim’, frozen in a regressive, impure, backward ‘pre-’ state until liberated by
transitional justice and its practitioners, who launch it forward to a pure, progres-
sive, liberal democratic state through a given form of ‘treatment’, the transitional
justice mechanism (mirrored by the healing of the trauma victim through engage-
ment with transitional justice practitioners and practices, especially the mechanisms
in question).
On pages 9–10 of the booklet, this past and present of transitional justice time
come sharply into focus. The left-side graphic shows a split scene of Uncle San
lighting incense and praying for the spirits of the dead juxtaposed with an Aunty
Yan speech bubble as she hails him to come to a ‘special meeting about the Khmer
Rouge… in our village’ being conducted by a ‘Citizen Advisor’ from the KID,
the non-governmental organisation that produced the booklet to use in its tribunal
outreach activities.
Here we see transitional justice time in motion, as Uncle San moves from his
frozen, backward states (performing ineffective ‘traditional’ practices incapable
of healing his trauma) to an active, progressive, civilised state (engaging with
the court, which has the potential to heal the traumatic wounds that have afflicted
him for so long). In this context, civil society practitioners serve as the mediators
of transformation as they bring the court to the villages that are so distant from
it, a practice aptly termed, as noted above, ‘outreach’. The court reaches out and
provides its healing touch to even those living in the remote countryside with the
help of organisations like KID.
Particularly during the early phases of the court, which started operation in
mid-2006, a number of these organisations served as intermediaries between the
court and the population. Many of these intermediary organisations had been
established during or soon after the 1993 UN-sponsored elections in Cambodia to
promote human rights, law and democracy. Over time, each developed particular
areas of focus and distinct mechanisms to fulfil their missions.
KID, for example, was established on 6 October 1992, just prior to the UN-backed
elections, by a group of Cambodian-Americans and Ambassador Julio Jeldres, an
advisor to and official biographer of King Norodom Sihanouk.7 KID’s homepage
states that the NGO’s mission is ‘to foster democratic values in Cambodian soci-
ety by maintaining a neutral political position’. To this end, KID ‘carries out a
number of activities to promote a liberal democratic order as determined by the
1991 Paris Peace Agreement, based on a multi-party liberal democracy system, on
human rights, and the respect of law as stipulated in the Constitution’.8
This mission is reflected in KID’s Khmer Rouge Tribunal outreach programme,
which began in November 2005 and involved tens of thousands of villagers in
seven provinces. It was carried out with the goal of ‘eliminating Cambodia’s cul-
ture of impunity, ensuring respect for the rule of law, and facilitating people’s
 The Khmer Rouge Tribunal 253

participation in the tribunal process’.9 KID’s 184 ‘citizen advisors’, comprising

respected and more educated villagers such as teachers, stand at the heart of this
and other KID initiatives. Inspired by the citizen advisors created in Britain dur-
ing World War II, KID’s citizen advisors seek to help and inform ‘local people in
remote areas, where there is a poor knowledge of democracy and limited respect
for human rights’ and thereby ‘promote understanding of the law and its admin-
istration, how to prevent and resolve conflict, and how to promote peace in the
community’.10
Starting in 2007, KID’s citizen advisors were tasked with conducting outreach
workshops with groups of 25–30 people in different villages.11 The sessions pro-
vided a basic explanation of what the tribunal was and how it operated as well
as how victims might become involved. Indeed, the citizen advisor also assisted
those who were interested in filling out applications to become civil parties, com-
plainants or witnesses at the tribunal. Prior to the start of this initiative, KID’s
outreach team had begun to develop a variety of outreach materials, ranging from
a flip chart and films to several explanatory booklets, including Uncle San, Aunty
Yan, and the Khmer Rouge Tribunal.
In the speech bubble juxtaposed with the image of Uncle San praying to the
spirits of his ancestors, an ‘interested’ and ‘curious’ Uncle San is hailed, like the
reader of the booklet, to participate in a KID outreach session. Standing in front
of a European Union and an ECCC poster affixed to a wooden beam, a KID
citizen advisor reads from one of the KID outreach booklets to twenty villagers.
Uncle San relates how, ‘at the meeting, KID’s CA [Citizen Advisor] described
the Khmer Rouge Trials,’ about which the villagers had never before heard. He
learns that the tribunal is located in the capital of Cambodia, Phnom Penh, and is
composed of international and national staff.
The citizen advisor also tells Uncle San and his fellow villagers how the United
Nations and the Cambodian government reached an agreement to hold the tribu-
nal in 2003 in order to ‘to seek justice, national reconciliation, stability, peace, and
security in Cambodia’ (p. 12). A graphic shows the Cambodian and UN officials in
suits signing the agreement. No one in this frame looks like Uncle San. Here we
meet transitional justice time head on as we jump from the Khmer Rouge period
(1975–1979) to the origin of the transitional justice mechanism in 2003. Uncle
San, the Cambodian everyman who is locked in a static, traumatised, primitive
and savage time of the past, steps into the progressive, healing, developed and
civilised time of the present transitional justice moment. What happened prior to
1975 and between 1979 and 2003 is flattened and erased12 a temporal erasure that
is one of the hallmarks of dichotomous transitional justice time.
In other words, transitional justice time de-historicises in contrast to the truth
claim with which it is often associated. We learn nothing of the origins or the
immediate aftermaths of the conflict, such as the Vietnam War or the geopoliti-
cal politics that helped civil war until the late 1990s. After being toppled in early
1979, the former genocidaires were rearmed by the US, China, Thailand and
others – and even given Cambodia’s seat at the United Nations. Uncle San does
254 Alexander Laban Hinton

not occupy this time. There is just the Khmer Rouge period and then the 2003
agreement. Without it, there is no progression, just stasis. Uncle San, like the
‘failed’ state of Cambodia, is frozen in time until this moment, in which he is
remade. Despite the oft-heard claims that the KRT will reveal ‘the truth’, transi-
tional justice time involves erasures, as a broader understanding of Cambodian
society, history and geopolitics, factors that provide the critical backdrop and
aftermath of the genocide, disappear from sight, diminishing understanding and
producing an eclipsed truth.
In the next frame, Uncle San and Aunty Yan are seen sitting on a Cambodian
platform bench in front of her cement house, which suggests somewhat greater
wealth and status – and perhaps education – than Uncle San, who lives in a tradi-
tional wooden house. A radio hangs from a window. Uncle San holds a pen and
looks expectantly towards her as they fill out forms. He states (p. 14):

Aunty Yan knows more about the KRT than me because she listens to the
radio every day. Aunty Yan taught me that the victims can submit a com-
plaint to the court: She showed me the complaint form and taught me how
to fill it out.

This scene suggests some of the key normative goods underlying the transitional
justice imaginary, particularly freedom of choice and equality. On the one hand,
Uncle San has the right and freedom to choose whether or not to participate in the
tribunal. He asserts this liberal subjectivity by stating, ‘I think I want to [become
a complainant]!’ On the other hand, the positions of Uncle San and Aunty Yan
reverse traditional village gender norms, where the man would normally be
assumed to speak from the position of authority.
The KID project officer who was in charge of developing the booklet told me
that the picture was drawn this way because ‘we have a human rights project.
Here it is the influence of the human rights concept of gender’. He stated that they
wanted to combat the notion that ‘women don’t know anything in the grassroots
[level]’ and to teach people ‘to not look down on the women in the community, but
to show that every person has the same rights and dignity’. This focus on gender
equality can also be seen in the legal proceedings, where gender-based crimes,
such as sexual violence and forced marriages, have been foregrounded.
The page concludes with Uncle San stating, ‘Aunty Yan and I also want to take
a trip to the ECCC.’ Most of the remainder of the booklet describes their journey
and experiences there. Their mode of transportation is a sleek, modern bus with
an ECCC logo on the side. The project officer explained that the bus was meant to
reflect the ‘international standards’ of the court. It can also be read as a vehicle of
transformation, as the UN symbolically ‘conveys’ Uncle San from the regressive
past as he ‘enters’ the domain of transitional justice. He will leave transformed.
Here we find a spatiotemporal progression that mirrors the transformation of
consciousness taking place. Uncle San’s position of stasis is first destabilised
 The Khmer Rouge Tribunal 255

by the KID village outreach programme, which ‘hails’ him towards the transi-
tional justice imaginary. There, he begins to learn the outlines of this vision, mani-
fest in discussions about the court and its operations. He is invited to become a
part of the process, first by considering becoming a complainant (‘I think I want
to’) and then, through the bus ride, directly entering into the spatiotemporal zone
of the court, thereby ‘leaving behind’ the ‘static’ and ‘less developed’ village. All
of this could readily be viewed through the anthropological lens of a rite of pas-
sage, in which Uncle San passes through a threshold, boarding the ‘international
standards’ bus and crossing the gates of the court (behind which, in the booklet,
stands the courtroom building, which is modern yet looks almost royal with tow-
ering Khmer spires in the background) and is transformed through ritual activities
(legal procedure in the broadest sense) in this liminal space.
Uncle San and Aunty Yan next attend a court session, where they are ‘given
headphones to listen’, an act that could be read as a symbolic exercise of the new
identity in the making, as ‘modern’ transitional justice language and procedure
is ‘translated’ into the Cambodian context. Everyone, Uncle San notes, is ‘inter-
ested’ (p. 20). Such translation is never straightforward, as the global flows of
transitional justice meet the local realities on the ground. Thus, Uncle San says
that he ‘didn’t understand who was being accused of being criminals’. This ques-
tion mirrors a key concern of many Cambodians who, like Uncle San, have trou-
ble understanding why the immediate killers of their friends and family are not
being tried.
Aunty Yan, who is situated as the voice of the court here and elsewhere (perhaps
in part because she embodies the normative good of transitional justice through
assertion of gender equality), explains that the court will ‘only try the senior lead-
ers of the Khmer Rouge and those most responsible for committing serious crimes
during the Khmer Rouge Regime’. To try lower level cadre, she tells him, would
jeopardise the court’s goal of helping Cambodians achieve ‘justice, national rec-
onciliation, peace, and security’ (p. 22). The opposite graphic makes this clear, as
it crosses out an arrow pointing towards a Khmer Rouge cadre executing a person
at a killing field in favour of a frame that shows a cadre telling his subordinates:
‘Comrades, you must smash [our] enemies completely.’ This frame exchange por-
trays the process of calibration that takes place in transitional justice contexts, as
local understandings and concerns must be brought into some sort of functional
consonance with those of the mechanisms in place and vice versa (though almost
invariably the local is normatively expected to adapt to the more ‘developed’
international norms, as illustrated by the continual privileging and emphasis on
‘international standards’ at the court).
The next graphic shifts perspective from one of without, in which Uncle San
and Aunty Yan sit in the visitor’s gallery looking into the glass-enclosed court-
room, to one of within, as if the viewer has directly become part of the process
itself. Each party in the court is labelled (witness, accused, judges, prosecution,
etc.), with the largest label appearing above the heads of a group of ‘regular’
Cambodians designated as ‘civil parties’. Aunty Yan explains that a ‘civil party
256 Alexander Laban Hinton

is a victim who submitted an application to the court and was accepted by the
judges. They directly take part in the trials or take part though their representa-
tives.’ Here, through participation (first in the outreach session and then in the
court itself), we see Uncle San going through a steady transformation into an
active juridical subject.
This transformation begins to be solidified on the next page, when Uncle San
goes, now alone, to see the head of the court’s victims unit, who tells him that he
can become a civil party if ‘I fill out the form and the judges accept my applica-
tion based on several conditions of the law. If I am a civil party, I have the right
to participate in all of the court proceedings, plus a right to request collective and
moral reparations’ (p. 26).
Indeed, civil parties in Cambodia enjoy almost full procedural rights in the
proceedings, including the right to sit in the courtroom and to be represented by
their own lawyers, who support the prosecution. Such civil party participation at
the KRT, which is enabled by Cambodian civil law, empowers the victims more
than perhaps any other international tribunal in the world. But the contours of
Uncle San’s new-found subjectivity are further refined, as he is constituted as a
participatory, rights-bearing victim, who is entitled to redress like the civil parties
sitting in the courtroom. This status is ritually affirmed by the filling out of an
application, which requires a reframing the past and the applicants subjectivity in
juridical terms.
On the trip home, Aunty Yan asks Uncle San if the Khmer Rouge might harm
them if they participate in the trial. Uncle San reassures her, noting that the Khmer
Rouge held power long ago and that head of the Victims Unit had told him protec-
tion was available if there were a strong risk. The court here is depicted as patron
and protector, an image that resonates with Cambodian notions of moral ties but
also suggests the hierarchical position of the court as an entity that provides assist-
ance to ‘needy’ Cambodia, a role that again erases the history of geopolitical inter-
ference in Cambodia and suggests the country’s ‘lack’. The court offers protection
to the almost childlike Uncle San, much as a parent protects a child from danger.
Indeed, Uncle San is depicted in childlike terms throughout much of the booklet,
even as he ‘matures’ into a more ‘developed’ form of being.
The day after their trip to the KRT, Uncle San and Aunty Yan are depicted
discussing the tribunal with several of their fellow villagers. They have become
like emissaries of the court – a manifestation of the longed-for ‘multiplier effect’
that one often hears mentioned in the outreach community – as they inform other
villagers about what they saw and learned. The entry of this information into the
consciousness of the other villagers is illustrated by a series of five thought bub-
bles in the graphic: a convicted criminal being led to jail, the scales of justice, the
court itself, a well, and a stupa – images that contrast strongly with the images
of Khmer Rouge violence that preoccupied Uncle San at the start of the booklet.
‘We talked a long time about the KRT and the future of Cambodia,’ Uncle San tell
us. ‘We agreed that the establishment of the KRT is very good to seek justice for
victims. The trials can find truth and give us relief (sabay chhet) from the past.’
 The Khmer Rouge Tribunal 257

Here we find another manifestation of the normative dimension of the transitional

justice imaginary: the notion that such mechanisms will deliver a set of goods
such as truth, healing, moral reparation and societal transformation. These norma-
tive goods thereby connected to the end point of the teleology driving transitional
justice time towards a longed-for state of progress and development.

Conclusion
This seemingly simple booklet, so popular that apparently the court considered
purchasing the rights to it, can be read in many ways. On the most obvious level, it
provides an overview of the reasons for and structure of the court with a particular
focus on victims’ participation. In this sense it echoes, in a very general sense,
much of the outreach message that the KRT and various intermediary organisa-
tions have been attempting to convey.
As such, it may also be read as a token of the court that symbolises and con-
denses its larger meanings. Most broadly, I want to argue that the booklet is pro-
ductive in two senses. First, the booklet embodies notions of transitional justice
that are central to the larger functioning and legitimisation of the court itself and
are part of a larger transitional justice imaginary. This imaginary, as I have written
elsewhere (Hinton 2010b), suggests a teleology of a movement from a contami-
nated pre-state (of regressive savagery, violence, chaos, anarchy, etc.) to a purified
post-state of a modern liberal democratic order (associated with what is civilised,
peaceful, ordered, progressive, etc.), with the transitional justice mechanism – in
this case the tribunal – serving as the mechanism of change.
This schema is directly manifest in the booklet. It begins with a coding of Cam-
bodia as a place of violence, savagery and regression, as Uncle San recalls the
horrors of the Khmer Rouge. He himself embodies the regression, as he is plagued
by dark memories of the past. He is a traumatised victim, childlike, an incomplete,
not fully functioning being. Like Cambodia, he needs help to move forward.
The court is the vehicle of this transition. Indeed, the slogan of the court is
‘Moving Forward through Justice’. The end state of the transition, as we are
told several times, is stated in its basic goals: justice, reconciliation, peace, truth
and relief. The court itself signifies Cambodia’s lack, manifesting the modernity
it has not achieved. Uncle San notes the technology at the court even as the
graphic images, such as the bus frame, suggest the sleek, modern, high-tech
nature of the court
This mechanism already suggests the end, the post-state of modernity to be
achieved. At the end of the process, Cambodia will attain what it lacks. Thus,
after their visit to the court, Uncle San, Aunty Yan and their neighbours discuss
not just the court but the future of their country, the post-state. The accompa-
nying graphics contains a picture of the court as part of a series of interlinked
images that suggest this better future: criminals (who lived freely because of a
‘culture of impunity’ and a lack of ‘the rule of law’) are taken to jail as justice
is upheld; the scales of justice balanced; a stupa symbolising peace for the dead
258 Alexander Laban Hinton

and reparations for the living; and a well signifying reparation, development,
social justice and repair. Once again, at the end, Uncle San himself embodies
the new state of progress as he, like Cambodia, is healed and democratised by
the process. He then sleeps through the night like a young child who has finally
stepped forward into a blissful new stage of development.
And symbolically Uncle San is not the same. His very being has been trans-
formed as he becomes (at least it is suggested) a modern liberal, rights-bearing
subject who is healed through the process. Indeed, he now lives in a new world
of modernity. The last graphic shows Uncle San sleeping in his hammock near a
thatched house.
In contrast to the initial hammock frame in which a frowning Uncle San is
plagued by the nightmares of the past, the last graphic shows him sleeping com-
fortably in his hammock, a slight smile on his face as he dreams of a new Cam-
bodia with electricity, fancy wooden houses, and even a factory in the distance.
The accompanying caption reads, ‘Then… I slept the whole night with no bad
dreams’ (p. 34). Uncle San, like Cambodia, is imagined as purified, renewed and
remade through the mechanism of the court as he passes through transitional jus-
tice time.
The KID project leader, who worked with an art student to design all of the
graphics, was explicit about the message of this last frame, ‘Here, Uncle San, after
his participation, a long walk and journey, comes [back] to his own house. He can
now close his eyes peacefully, and he [dreams of] a peaceful situation and happi-
ness.’ Flipping back forth between the initial graphic of Uncle San’s ‘bad dreams’
and his dream on the last page, he explained:

This one [the first page] is tragedy, bad things, the [last page has] good
things… birds and trees… kids who go to school in peace. The villagers have
jobs [and] there is no mistreatment of monks. … And you can see [that the
village] now has electricity… Normally only the rich have money to buy
wood tile [houses]. So [this page] means that there is prosperity… no fam-
ine… [and] where we have factories, [we have] development.

The project leader explained that the meaning of the booklet was that people
would live ‘peacefully after participating in the court process. This is the real
output we would like to explain to the grassroots. That is your benefit.’ Uncle San,
he continued, is a changed man, who no longer has psychological syndromes or
bad dreams. ‘We let the reader conclude that the court changed him because of his
participation.’ The factory, in turn, symbolised economic development in a rural
landscape that normally lacks such industry. The people imagined in Uncle San’s
new dream bubble ‘go to the factory to produce the final product [that is sold on
the] market. That is the development process’.
Here the KID team leader explicitly describes the end point of transitional jus-
tice time: a liberal democratic order occupied by the functional, rights-bearing
 The Khmer Rouge Tribunal 259

individual, capitalism and, of course, the qualities that supposedly come with it:
peace, happiness and progress.
With Uncle San, the reader journeys through the transitional justice imagi-
nary. Our minds, like his, become filled new thoughts and images, sym-
bolically depicted by the thought bubble graphics. And like him, the reader
symbolically passes through a transformative rite of passage and produces
a new state of being. This imaginary asserts specific sorts of time (a tran-
sitional justice time characterised by temporal erasure, a teleology, and the
instantiation of a series of pre- and post-state binaries), subjectivity (liberal,
democratic, rights-bearing, juridical beings such as lawyers, civil parties and
even defendants whose fair-trial rights are frequently invoked) and moral
economies of justice (the ‘gift’ of the international community and the sorts
of normative goods it bestows, such as peace, reconciliation, healing, truth,
justice). In this imaginary, even as the transitional society emerges, it achieves
a still-fragile status of ‘newly emerging democracy’, one that is not on par
with the implicitly ‘mature’ democratic governments and institutions – who
are part of the ‘international community’ constituted in the transitional justice
imaginary – that help guide the transition.
To seek to unpack the assumptions of transitional justice is not to simply dis-
miss it. It is to engage in a ‘critical transitional justice studies’ (Hinton 2010b) that
allows us to recognise the gaps within and shadows behind that which is assumed
and naturalised. In particular, this imaginary has a tendency to erase historical and
sociocultural complexities, ones that are directly relevant to the presumed norma-
tive goods of ‘truth’, ‘prevention’, and ‘understanding the past’ that are so often
asserted in transitional justice rhetorics. Even for a strong supporter of transitional
justice initiatives, such understanding is crucial, for it suggests alternative ways in
which such mechanisms for dealing with the legacies of the past might unfold. To
ignore such critical thinking is to risk remaining, like Uncle San, caught, unknow-
ing, in the webs of the transitional justice imaginary.

Notes
1 The material in this chapter, which is a revised version of Hinton (2013), is based on an
ongoing ethnographic research project on the Khmer Rouge Tribunal that extends from
the court itself to rural villages. This research has been supported by grants from the
United States Institute of Peace and the Rutgers Research Council. The original essay
was written while I was in residence as a Member of the Institute for Advanced Study
at Princeton (2011–12). In addition to thanking these institutions for their support, I’d
like to thank Nicole Cooley, Deborah Meyersen, Annie Pohlman and the editors for
their thoughtful comments and suggestions.
2 A ‘supermajority’ of judges is required for conviction, thereby ensuring that at least
one foreign judge must join in any decision made by the Pre-Trial Chamber (4 out of
5 judges), Trial Chamber (4 out of 5 judges), or Supreme Court Chamber (5 out of 7
judges), each of which has a majority of Cambodia jurists.
3 On the origins and history of transitional justice, see Arthur (2009), Hinton (2010a) and
Teitel (2003). On the components of transitional justice from a practitioner side, see
260 Alexander Laban Hinton

the website of the International Center for Transitional Justice (http://ictj.org/about/

transitional-justice, accessed 8 November 2011).
4 An examination of this issue is beyond the scope of this chapter but is addressed in the
book on the tribunal that I am writing.
5 Interview with Chhaya Hang, 23 June 2011.
6 On the symptoms of PTSD, see http://www.nimh.nih.gov/health/publications/post-
traumatic-stress-disorder-ptsd/what-are-the-symptoms-of-ptsd.shtml, accessed 3
November 2011. The booklet seems to assume a Western biomedical model of post-
traumatic stress disorder symptomology as opposed to local idioms of distress that are
found in Cambodian villages (see Hinton et al. 2010).
7 The Khmer Institute of Democracy homepage, http://www3.online.com.kh/users/kid/
index.htm, accessed 3 November 2011.
8 Ibid.
9 ‘Outreach Activities’, Khmer Institute of Democracy, http://www.khmerrough.com/
pdf/OutreachActivities.pdf, accessed 3 November 2011.
10 ‘Proto-Ombudsman Program (Citizen advisor Project)’, Khmer Institute for Democ-
racy, http://www3.online.com.kh/users/kid/program.htm, accessed 3 November 2011.
11 ‘Citizen Advisor Training and Outreach’, Khmer Institute of Democracy, http://www.
khmerrough.com/citizen.htm, accessed 3 November 2011.
12 For an overview of some of the events that took place during this period, see Fawthrop
and Jarvis (2004).

Bibliography
Anderson, B., 2006. Imagined Communities: Reflections on the Origin and Spread of
Nationalism. New York: Verso.
Arthur, P., 2009. How ‘Transitions’ Reshaped Human Rights: A Conceptual History of
Transitional Justice, Human Rights Quarterly, 31(2), pp. 321–367.
Castoriadis, C., 1987. The Imaginary Institution of Society. Cambridge: MIT Press.
Chandler, D.P., 1999. Voices from S-21: Terror and History in Pol Pot’s Secret Prison.
Berkeley: University of California Press.
Fawthrop, T. and Jarvis, H., 2004. Getting Away with Genocide: Cambodia’s Long Struggle
Against the Khmer Rouge. London: Pluto.
Hinton, A.L., 2005. Why Did They Kill? Cambodia in the Shadow of Genocide. Berkeley:
University of California Press.
Hinton, A.L., ed., 2010a. Transitional Justice: Global Mechanisms and Local Realities after
Genocide and Mass Violence. Piscataway: Rutgers University Press.
Hinton, A.L., 2010b. Introduction: Toward an Anthropology of Transitional Justice. In:
A.L. Hinton, ed., 2011. Transitional Justice: Global Mechanisms and Local Realities
after Genocide and Mass Atrocity. Piscataway: Rutgers University Press, pp. 1–22.
Hinton, A.L., 2013. Transitional Justice Time: Uncle San, Aunty Yan, and Outreach at the
Khmer Rouge Tribunal. In: D. Meyersen and A. Pohlman, eds, Genocide and Mass
Atrocities in Asia: Legacies and Prevention. New York: Routledge Press, pp. 86–99.
Hinton, D., Hinton, A.L., Eng, K-T. and Choung, S., 2010, PTSD Severity and Key Idioms
of Distress among Rural Cambodians: The Results of a Needs Assessment. In: B. Van
Schaack, D. Reicherter and Y. Chhang, eds, 2011. Cambodia’s Hidden Scars: Trauma
Psychology in the Wake of the Khmer Rouge, An edited Volume on Cambodia’s Mental
Health. Phnom Penh: Documentation Center of Cambodia, pp. 47–68.
 The Khmer Rouge Tribunal 261

Khmer Institute of Democracy, 2008. Uncle San, Aunty Yan, and the KRT. Khmer Institute
of Democracy. Phnom Penh, Cambodia.
Kiernan, B., 1996. The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the
Khmer Rouge, 1975–79. New Haven: Yale University Press.
Taylor, C., 2004. Modern Social Imaginaries. Durham: Duke University Press.
Teitel, R.G., 2003. Transitional Justice Genealogy. Harvard Human Rights Journal, 16,
pp. 69–94.
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Part III

Trauma, resilience and

justice
This page intentionally left blank
Chapter 13

Perceived control over traumatic

events
Is it always adaptive?
Patricia Frazier

Introduction
This chapter provides an overview of my research programme on the relations
between perceived control and adjustment to traumatic events, including victimi-
sation. I will begin with a review of some early research on attributions and then
describe a new model of perceived control and the development of a new measure
of perceived control. I will then review some findings regarding whether the rela-
tions between control and adjustment differ as a function of characteristics of the
person or event. Finally, I will describe an online intervention we are developing
that is designed to increase perceived control over stressful and traumatic events.
Because I am only reviewing one aspect of my research, I would like to put it in
the context of my broader research programme. On the broadest level, my research
is concerned with stressful and traumatic life events. I have done research on the
prevalence of traumatic life events in community (Anders et al. 2011) and college
(e.g. Frazier et al. 2009; Anders et al. 2012) samples and on the effects of trauma
exposure. This includes research on Post Traumatic Stress Disorder (PTSD) (Fra-
zier et al. 2011) as well as post-traumatic growth (Frazier et al. 2009). In our most
recent work we are also using latent class growth analyses to identify different
patterns of change in symptoms over time following traumatic events (Frankfurt
et al. 2012; Frankfurt et al. 2012). I have also carried out research on factors asso-
ciated with trauma recovery, such as the type of trauma experienced (Anders et al.
2011) and various psychosocial factors that are associated with victim recovery
(e.g. Frazier et al. 2005). Finally, my recent research also involves developing
and testing interventions for trauma survivors, particularly online interventions,
as described below.
I am particularly interested in online interventions because trauma survivors
can access them without stigma, they are convenient, they are less expensive
than face-to-face treatments to administer, and because research shows that they
can be quite effective (e.g. Barak et al. 2008). Along with various students and
colleagues, I am conducting three ongoing intervention studies. One involves
testing the efficacy of brief video-based coping skills and relaxation interven-
tions for sexual assault survivors. This intervention has previously been found
266 Patricia Frazier

to be effective (Acierno et al. 2003) and we are attempting to replicate those

findings. I am also part of another research team that is conducting an online
expressive writing intervention for returning veterans based on the work of
James Pennebaker (2004). Finally, my students and I are developing and testing
an intervention to increase perceived control over traumatic events. Research on
that intervention is reviewed below.

Perceived control and adjustment to trauma

Overview
As mentioned, one aspect of my work focuses on identifying factors associated
with trauma recovery, particularly factors that can facilitate adjustment. My work
has focused on psychosocial factors that are amenable to change through psycho-
social interventions, such as social support, coping strategies and in particular
perceived control.
I have focused on perceived control because it is a very important construct
in theories of the development of PTSD. Specifically, several theories (e.g. Foa
et al. 1992; Ehlers and Clark 2000) propose that uncontrollable events are more
likely to lead to PTSD than are controllable events. In fact, Foa and colleagues
argued that the perceived uncontrollability of traumatic events is so important
that it should be incorporated into the definition of traumatic events in diagnos-
tic manuals such as the Diagnostic and Statistical Manual of Mental Disorders
(DSM) (American Psychiatric Association 2000). It also is important to point out
that perceived uncontrollability is thought to be more important than objective
uncontrollability (Foa et al. 1992). Two people can experience the same event and
one can see it as controllable and the other as uncontrollable; it is this perception
that is important.
This theory is based on animal research showing that ongoing exposure to
uncontrollable stressors, such as electric shocks, causes greater fear responses
over time than exposure to controllable stressors (Foa et al. 1992). However,
many human traumas are discrete events rather than ongoing. For example, sud-
den bereavement and sexual assault are discrete events. Certainly, some traumas
involve ongoing abuse but many do not. Whether events are ongoing or not, is it
better for people to perceive traumas as controllable? For example, if my spouse
or child died, or if I was assaulted, would I be less distressed if I perceived that
trauma as controllable or preventable? Would that make me feel better? This is the
question I have been interested in over the past several years.

Early research on attributions

In my initial research on control, I addressed this question about the role of con-
trol in adjustment to trauma by testing Janoff-Bulman’s (1979) influential theory
regarding the role of behavioural and characterological self-blame in adjustment
 Perceived control over traumatic events 267

to rape. In this theory, behavioural self-blame involves blaming a rape on specific

controllable behaviours. For example, a victim who is engaging in behavioural
self-blame might say: ‘If I had not gone to that party, I would not have been
raped.’ Characterological self-blame, on the other hand, involves blaming the rape
on uncontrollable factors. For example, a victim might say: ‘I am just the victim
type. These things always happen to me.’ So, she is blaming herself but not some-
thing about herself that she can change or control.
According to Janoff-Bulman’s (1979) theory, behavioural self-blame is adap-
tive because it is associated with the belief that future rapes can be avoided. So,
if a victim says to herself, ‘If I had not gone to that party, I would not have been
raped’ she can also say to herself that she will not go to parties like that again and
thus can avoid the same thing happening again. According to this theory, that will
provide a sense of control and facilitate adjustment. Characterological self-blame
is not hypothesised to lead to the same sense of control and thus is not thought to
be adaptive. I was particularly interested in testing this theory because it is con-
trary to clinical approaches for working with victims that actively discourage all
types of self-blame. That is, victim advocates often are trained to tell victims that
it was not their fault, that they are not to blame. Thus, we have a theory telling us
that self-blame can be good and clinical practice dictating the opposite approach.
I conducted three studies testing Janoff-Bulman’s (1979) theory on three differ-
ent samples of women who had been raped. The first was a study of female rape
victims who were seen in a hospital-based rape crisis programme one week post-
rape (Frazier 1990). The second was a longitudinal study at the same rape crisis
centre with women who had recently been sexually assaulted (Frazier 2000). The
third was a study of female college students who had been raped an average of
eight years previously (Frazier and Schauben 1994). With these samples we were
attempting to replicate findings across different types of samples and time frames
post-assault.
In all three studies, the results failed to support Janoff-Bulman’s (1979) model.
For example, both behavioural and characterological self-blame were consistently
associated with more distress. In fact, victims may have difficulty separating the
two types of self-blame because it is difficult to blame one’s behaviour without
also blaming one’s self for being the type of person who engages in that behav-
iour. Thus, this theoretical distinction did not translate well to the real world. In
addition, victims who engaged in more behavioural self-blame were not more
likely to believe that they could avoid being raped in the future. This was the key
aspect of Janoff-Bulman’s (1979) theory – that behavioural self-blame is adaptive
because it is associated with a sense of future control.
Another interesting finding was that all types of attributions were associated
with more distress. That is, victims who blamed the rapist more and who blamed
society more also reported more distress, as did victims who reported more often
thinking about ‘why’ the rape occurred. This is important because many theories
have focused on which types of attributions are more helpful than others. How-
ever, our data suggested that it might not be productive to try to find a particular
268 Patricia Frazier

attribution that is helpful but rather it might be better to shift the focus away from
attributions about the event.

Development of the temporal model of control

Before we drew the broad conclusions that we should move away from the focus
on specific types of attributions, we needed to acknowledge that although rape is
a common – and very distressing – event and very worthy of study, the relations
we found studying sexual assault may not generalise to other events. This led
us to move beyond theories developed specifically to explain adjustment to rape
to a broader review of the literature on control and adjustment to stress (Frazier
et al. 2002). In reviewing this literature, we realised, first, that there are many
constructs related to control. In fact, in an excellent review, Skinner (1996) noted
that there are more than a hundred control-related constructs that differ along
several dimensions. In our review of the broader literature on perceived control
and adjustment to stress, one dimension that stood out for us was the temporal
dimension. This dimension stood out because, as illustrated below, different forms
of control that differ along the temporal dimension appeared to be differentially
related to adjustment. Although Skinner mentioned this dimension, it had not at
that point been strongly emphasised in the literature.
Thus, based on our broad review of the literature, we developed a temporal
model of control over stress and trauma. In other words, perceptions of con-
trol have a temporal dimension and can be focused on the past, the future or
the present. Past control focuses on the question: ‘Could I have prevented the
event from occurring? Did I have control over the fact that the event occurred?’ It
involves focusing on the past and the cause of the event. Future control involves
perceptions about personal control over the event occurring again in the future.
‘Can I keep it from happening again?’ This distinction between the past and the
future was part of Janoff-Bulman’s (1979) theory about behavioural and charac-
terological self-blame. Behavioural self-blame involves past control which was
hypothesised to be associated with future control. However, as mentioned, this
hypothesis was not supported. One aspect of control that was not part of Janoff-
Bulman’s (1979) model and was not really explicit in the literature at all when we
carried out our review (Frazier et al. 2002) was present control. In our review, we
located several studies that included measures related to aspects of stressors or
traumas that were controllable in the present. These involved control over illness
symptoms, control over medical care and treatment, and control over the recovery
process. As these terms suggest, this form of control was often measured in the
context of coping with a medical condition or illness.
This temporal dimension is important because, in our review, these three different
aspects of control had very different relations with measures of adjustment to stress
and trauma (Frazier et al. 2002). For example, past control was either unassociated
with or positively associated with distress. That is, the more individuals believed
 Perceived control over traumatic events 269

that they had control over the event occurring in the past the more distress they
reported. This is contrary to the theoretical assumption that controllable events are
less distressing, if control is defined in terms of control over the cause of the event
in the past. In the literature review carried out by Frazier et al. (2002), the relations
between measures of future control and distress were mixed and depended on the
extent to which the event actually was controllable in the future. If an event defi-
nitely was not controllable (e.g. a sudden bereavement), the belief that that event
could be prevented in the future was associated with more distress. In essence, it
is not helpful to try to control events over which we clearly do not have control.
Finally, various measures of present control – such as control over the recovery
process – were consistently related to less distress and the relations were more
robust. Present control was the only type of control associated with less distress
because we do have more control over the present than the past or the future. Thus,
the model that we developed after reviewing the literature was one in which differ-
ent forms of control have different relations with adjustment, which is in contrast to
the typical assumption in the literature that ‘control is good’. The next step was to
actually test the model.

Initial test of the temporal model

We first tested our temporal model in a longitudinal study of 171 rape victims seen
for a sexual assault examination in the same hospital emergency room where we
did our previous studies (Frazier 2003). Participants completed measures of past
control including behavioural self-blame and blaming the rapist, present control
which was operationalised in terms of control over the recovery process and future
control which was here assessed in terms of taking precautions to try to prevent a
future assault. Distress was assessed in terms of symptoms of depression, anxiety
and hostility using the Brief Symptom Inventory (Derogatis 1993).
The results of this study supported our temporal model. Across time, and across
distress measures, past control was associated with more distress, future control
was unassociated with distress, and present control was consistently related to less
distress, with medium to large effects.
We replicated these findings regarding present control in a community sam-
ple of 135 women who had been raped an average of sixteen years previously
(Frazier et al. 2004). Present control was related to less distress, with almost the
same effect size as in the previous study. In the same study, present control was the
only factor related to less distress in a sample of 159 bereaved women.
In this research in which we were conducting the initial tests of the temporal
model, we created face valid measures of past, present and future control but
we had not gone through an extensive process to create and validate the scores
on those measures. In other research on the relations between perceived control
and adjustment to trauma, researchers had often used 1-item measures to assess
control. One item is not typically considered to be adequate to measure a psycho-
logical construct (Brewer et al. 2007). If measures had more than one item, the
270 Patricia Frazier

items often combined past, present and future control. This is problematic given
that, as described above, these different aspects of control have very different
relations with adjustment. Measures also were often designed to assess control
within the context of a specific event. Such measures cannot be used to compare
the relations between control and adjustment across events. Surprisingly, despite
the importance of control to theories of the development of PTSD (e.g. Foa et al.
1992), there was at that time no general measure that could be used to assess per-
ceived past, present and future control across events. There are many measures of
social support and of coping but no measure of perceived control over trauma that
assesses the three aspects of control in our temporal model.

Development of a measure of perceived control

Thus, the next goal of our research programme was to develop such a measure,
which we call the Perceived Control Over Stressful Events Scale (PCOSES) (Fra-
zier et al. 2011). Much of the measure development work was done with under-
graduate students, some of whom have experienced very severe traumas (see e.g.
Frazier et al. 2009).
We have conducted approximately nine studies involving about 5,000 students
to develop the PCOSES. In these studies, students describe past or ongoing stres-
sors or traumas they have experienced and complete the PCOSES with regard to
these events, and complete measures of distress and of related constructs that we
use to establish the validity of scores on our measure (see Frazier et al. 2011 for
more details). A sample item for past control is ‘I could have done something to
prevent this event from happening’. A sample item for present control is ‘How I
deal with this event now is under my control’. And a sample item for the future
control subscale is ‘I can do things to make sure I will not experience a similar
event in the future’. A new subscale that assesses the likelihood that an event will
happen again in the future has also been developed (Frazier et al. 2012).
One important question is whether scores on the PCOSES were related to
important outcomes, such as distress. The answer to that question is ‘Yes’.
However, as predicted, the relations differed depending on the type of control.
Individuals who felt that they could have controlled the event in the past or
could prevent it from happening in the future tended to report more distress. In
contrast, present control was consistently associated with less distress; present
control at one point predicted less distress at a later point; and in prospective
studies, individuals who reported more control over present aspects of the
trauma reported less increase in distress from pre to post-trauma. Together, the
three PCOSES subscales explained up to one-third of the variability in distress,
a significant amount (Frazier et al. 2011).
Another important question was whether our event-specific measure of
control predicted distress beyond other factors that we know predict distress.
Again, the answer was ‘Yes’. Our measure predicted distress beyond general
perceptions of control (such as measures of mastery and self-efficacy), coping
 Perceived control over traumatic events 271

strategies that involve either approaching or avoiding problems, social support

from friends and family, the personality trait of neuroticism which involves
being more reactive to stress, and the number of prior traumatic events experi-
enced (Frazier et al. 2011; Frazier et al. 2012). Of all of these measures, present
control has the strongest relations with distress and is one of the few factors
associated with better adjustment.

Summary
In summary, with regard to past control, the data do not support models of PTSD
based on animal research that assume that controllable events are less distressing
if by control we mean control over the event occurring. Most human traumas are
not controllable and focusing on how they could have been controlled or pre-
vented in the past does not seem to be helpful. Future control also is generally
associated with more distress because it is not helpful to try to control things that
really are not controllable. For example, people who have experienced a sudden
death and think that they can prevent it from happening again actually report more
distress. This may be because they are engaging in strategies to try to prevent the
event that really are not going to help. Future control may be more adaptive for
events that are more controllable. For example, in one of our studies, students
who felt that they had more control over how they would do on an upcoming
examination did have better subsequent grades on that exam (Frazier et al. 2011).
Although examinations are not a major trauma, this study illustrates the point
that the relation between future control and outcomes may depend on the actual
controllability of the event. Finally, one way to maintain a sense of control in the
face of trauma is to focus on what we can actually control in the present – how we
react to the event and how we think and feel about the event. In every study we
have carried out, present control is consistently related to better adjustment and it
is one of the few things we have studied that is associated with better adjustment.
This is important because we know a lot more about factors that hinder adjustment
than about factors that facilitate adjustment.

Developing an intervention to increase present control

Because present control seems to be helpful, we thought that it would be a good
target for interventions. Before we tried to develop an intervention to increase
present control, we first wanted to assess whether there were situations in which
present control was unhelpful.

Is present control ever unhelpful?

Specifically, we examined whether there were differences in the relations between
present control and distress as a function of gender, race and type of event in
samples of university students. We did not expect any differences because we
272 Patricia Frazier

predicted that present control generally would be helpful for men and women, for
different racial groups and in the context of different kinds of events.
These analyses suggested that present control was related to fewer PTSD symp-
toms for both men and women and across different racial groups (white, Asian
American and African American). The relationship between present control and
lower distress was smaller among the African American group but the difference
between groups was not significant. With regard to type of event, we compared
two common events – sudden bereavement and sexual violence. In both cases,
present control was related to less distress. Thus, in these analyses, we did not find
any situations in which present control was associated with more distress.

Description of intervention
The next step in our research programme was to develop and test an online inter-
vention specifically designed to increase present control in the face of stress. As
mentioned, we used an online format to increase accessibility and reduce the stigma
associated with help-seeking. Because this is a new intervention, we wanted to test
it first with college students before testing it with more severely traumatised groups.
However, it also is true that students are not immune from stress and trauma. We
first carried out two pilot studies to make sure the intervention had some benefit,
which it did, particularly in terms of increasing present control. We also used data
from the pilot studies to refine the intervention before testing it in a larger study.
The intervention contained four web modules that each took ten to twelve min-
utes to complete. Each one followed a similar format. First, participants saw a
video of me talking about the research findings on a particular topic (see below).
Second, they saw a narrated presentation with examples from participants in our
pilot studies. Then they did an activity in which they applied the topic to their
own lives. They did the first three modules every other day and then after the third
module they spent one week practising present control by completing three stress
logs. These logs asked participants to write down what has been causing them
stress, what aspects of these stressors were out of their control, what aspects of
these stressors were controllable and what actions they could take to feel better.
Finally, after one week of practice they completed the fourth module online.
The topics of the four modules were: (1) stress and its effects; (2) different
aspects of control and the benefits of present control; (3) problem solving around
implementing present control; and (4) moving forward. The last module was
designed to help students keep practising present control and incorporated moti-
vational interviewing techniques.

Methods
We had three conditions in this study to which participants were randomised.
The first condition was the present control intervention just described with the
 Perceived control over traumatic events 273

four web modules and three stress logs (present control). The second condition
was that same intervention but with supportive feedback to the participants about
their stress logs (present control plus feedback). We added this condition based on
research suggesting that self-help programmes that contain some support from a
counsellor are more effective (e.g. Richards and Richardson 2012). The third con-
dition was the first stress module without any information about present control
and no feedback (stress information only).
We randomised about 100 people to each group. We selected people who scored
lower (below 3) on our measure of present control because in our pilot studies it
appeared that some people really did not need the intervention because they already
had the skill we were trying to teach (see below for details). Our sample was a typi-
cal college student sample; primarily female, white and 18–21 years old.
To assess the effectiveness of the intervention, participants completed various
outcome measures before and immediately following the intervention and then
three weeks later. The outcome measures included present control (assessed using
the present control subscale of the PCOSES) (Frazier et al. 2011), general self-ef-
ficacy (General Self-Efficacy Scale) (Schwarzer and Jerusalem 1995), perceived
stress (Perceived Stress Scale) (Cohen et al. 1983) and depression, anxiety and
stress symptoms (DASS-21) (Lovibond and Lovibond 1995).

Results
Attrition
Before presenting the results of the analyses assessing the effectiveness of the
intervention, it is important to present data on attrition. Online interventions can
be quite effective if people complete them, but often they do not (Richards and
Richardson 2012). A few weeks before the intervention about 400 students com-
pleted our prescreening measure of present control. Of those, about 300 scored
less than 3 on our present control scale and were randomly assigned to one of our
three conditions. Of those in the two active intervention conditions, about 60 per
cent to 70 per cent completed at least two stress logs and all four modules. In other
words 30–40 per cent signed up for the study but never began the intervention. Of
those who actually began the intervention 85–90 per cent completed at least two
logs and all four modules. Thus, we had very good retention in the study for those
who actually started the interventions.

Intervention effectiveness
Intervention effectiveness was examined by assessing change from pre-intervention
to the three week follow-up in the three groups using paired t-tests. Participants
in both intervention conditions (present control and present control + feedback)
had significant and large increases in present control from pre-intervention to three
weeks post-intervention. The intervention groups also reported significant increases
274 Patricia Frazier

in general self-efficacy that were medium in size. The general self-efficacy meas-
ure assessed perceived control over life events more broadly whereas the PCOSES
assessed perceived control over a specific stressor. The group that only received
information on stress did not increase in present control or general self-efficacy.
The two present control intervention groups also reported significant and medi-
um-sized decreases in perceived stress and in symptoms of depression, anxiety
and stress from pre-intervention to the three week follow-up. Stress symptoms
included things like nervous tension, difficulty relaxing and irritability whereas
perceived stress referred to the perception of stress (e.g. coping with all the things
you had to do). There were no pre to post-intervention differences for the stress-
information only comparison group on any of these measures.
Two other findings are of note. First, differences were bigger at follow-up than
immediately following the intervention. Thus, the effects of the intervention – rather
than diminishing – seemed to increase over time. Second, the intervention condition
in which participants were provided with feedback on their stress logs was slightly
more effective than the intervention condition that did not provide feedback.
The effectiveness of the intervention also can be assessed indirectly by looking
at the stress logs to see if participants’ stress levels seemed to be going down and
if their stressors were being resolved. The following are some examples that con-
cerned relationship stressors: ‘I have let go of the other person’s behaviour.’ ‘I have
definitely stopped worrying about how he feels. I’ve told him how I feel, and I can’t
control how he feels about it.’ ‘Since I talked to my boyfriend, I’ve spent less energy
worrying about our relationship and I am able to expend my energy elsewhere.’
These examples illustrated that participants did appear to have learned skills in iden-
tifying what they can and cannot control and to focus on the things they can.
In summary, there were significant changes from pre-intervention to three
week follow-up on all six outcome measures in both present control intervention
groups. Interestingly, the effects were even bigger at follow-up than they were
immediately after the intervention. Combining across measures, the effect size
was medium, or about one-half of a standard deviation of change. The effects
were slightly bigger in the group that got feedback. The feedback took about eight
hours across all participants and the entire intervention.

Conclusion
Despite prevailing theories that controllable events are less distressing, our
research suggests that the only aspect of control that is consistently associated
with less distress is present control. Thus, we have developed a very brief inter-
vention that has been shown to increase present control and reduce distress. Our
intervention is certainly less comprehensive than many online interventions but
it is also much shorter and it teaches one specific skill that can be very useful.
Participants also have responded well to it. In addition, at least in college students,
those who start the intervention are very likely to finish it.
 Perceived control over traumatic events 275

We are continuing to revise and expand the intervention both in terms of content
and production values and adapt it for use in specific groups. For example, in terms
of production values we recreated the video modules using a professional recording
studio. We have tested this revised intervention at a local community college that
serves a more diverse student body and again found the intervention to be effective in
increasing present control and decreasing distress. We have also created a new module
that teaches mindfulness skills and are testing whether the addition of that module
increases the effectiveness of our intervention. Finally, we are developing a new ver-
sion of our intervention that is specifically geared towards medical patients with voice
disorders who may find it difficult to participate in traditional talk therapies.

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Chapter 14

Procedural justice for victims of crime

Are victim impact statements and victim–offender
mediation rising to the challenge?
Tinneke Van Camp and Vicky De Mesmaecker

Introduction
Upon disclosure of a crime to the police, victims concede control over how to
respond to the offence to judicial authorities. Meanwhile, regaining control over
one’s life and over the consequences of victimization is instrumental to victims’
recovery (Herman 1997). Consequently, when victims delegate control over the
offence to the judicial authorities, this does not imply they do not feel a need
for involvement in subsequent proceedings (Wemmers 2002). Participation has
in fact been found to be fundamental to victims’ perceptions of the fairness of the
criminal justice system. This association can be explained by procedural justice
theory.
The objective of this chapter is to describe the procedural justice framework
and present it as a particular way to look at the interests of victims of crime in
the criminal justice system. The procedural justice model was developed and is
being advanced by social psychologists exploring the perceived fairness of con-
flict resolution in a wide array of social conflicts. Whereas early procedural jus-
tice research was mainly concerned with workplace conflicts and civil litigations,
more recently studies have been conducted with regard to fairness assessment
in criminal law proceedings, some of which address perceptions of fairness by
victims of crime. Findings suggest that procedural justice matters to victims (e.g.
Wemmers 1996).
In this contribution, we first briefly outline victim concerns in the criminal
justice system. This is followed by a description of the procedural justice model.
Finally, we examine two particular forms of victim participation – victim impact
statements (VIS) and victim–offender mediation (VOM) – and their potential for
compliance with procedural justice requirements.

Meeting victim concerns

Victims of crime have multiple concerns in the aftermath of a crime (Strang 2002;
Wemmers 2003; Goodey 2005). These can be classified in two categories: those
that follow directly from the victimization experience and those that ensue from
278 Tinneke Van Camp and Vicky De Mesmaecker

the encounter with the criminal justice system. The response to these concerns has
been subject to change over the last decades.

Victim concerns in the aftermath of victimization

Individuals falling victim to a crime can suffer a number of psychological conse-
quences, which include but are not limited to fear, anxiety, humiliation and feel-
ings of powerlessness (Maguire 1991). The impact of such suffering on victims’
lives leads to a number of particular concerns. Examples are the concern that the
police respond to the offence quickly and do their utmost to recover stolen goods
and apprehend suspects (De Mesmaecker 2011; Karmen 2012), the concern for
practical and emotional support and social recognition of the victimization expe-
rience (Shapland et al. 1985; Wemmers 2003; Lemonne and Vanfraechem 2010;
Bolívar 2012a), the concern for material and emotional restoration (Strang 2002;
Strang and Sherman 2003) and the concern for the offender to be held accountable
for his act (Poulson 2003; De Mesmaecker 2011; Bolívar 2012a) – which may but
does not necessarily imply a concern for some form of punishment (De Mesmae-
cker 2011; Van Camp 2011).1
Another category of concerns comprises those that result from being confronted
with the criminal justice system. Such confrontation gives rise to specific interests
relating to how the criminal authorities handle the case. A number of those relate to
opportunities for involvement in the criminal proceedings. Victims have repeatedly
expressed the wish to be informed about the progress of their case and their rights as
a victim by the criminal authorities (Wemmers 1995, 1999; Strang 2002; De Mes-
maecker 2011). They have furthermore expressed great interest in having their voice
heard and be recognized and in being allowed to participate in the criminal proceed-
ings in an active manner (Shapland et al. 1985; Strang 2002). Other concerns relate
to the interaction with the criminal authorities: to receive a respectful and fair treat-
ment figures high on victims’ priority list (Wemmers 1996; Strang 2002).

Responding to victim concerns

The first studies investigating the concerns of those affected by crime (for an
extensive overview of these studies and their results, see Maguire 1991) focused
mainly on concerns of the first type. While the direct impact of victimization on
victims’ psychological well-being remains an important field of study (see e.g.
Hanson et al. 2010; Kunst et al. 2013) more recently, the second category of con-
cerns has attracted much scholarly attention too. With this development came an
evolution in thinking about the key actors that could respond to victim concerns.
Before the 1970s, victims were mainly dependent on their community of care
for relief and alleviation of their suffering.2 Obviously, victims’ communities
of care continue to constitute an important source of emotional support (Davis
et al. 1999; Bolívar 2012b), but other actors have been added to the range of
 Procedural justice 279

‘service-providers’. In the 1970s, the first victim support and victim (-witness)
assistance services were established (Fattah 2000; Burgess et al. 2010).
But most importantly in light of our discussion, in the 1970s and 1980s aca-
demics uncovered the fact that victims also expect the criminal authorities to take
their concerns into account while the criminal justice process is taking its course.
Empirical research on this matter is connected with a growing literature on thera-
peutic jurisprudence (e.g. Wexler and Winick 1991). Researchers in the field of
therapeutic jurisprudence investigate the impact of law, legal rules, legal actors
and justice systems on people’s psychological functioning, mental health and psy-
chological well-being (Wexler and Winick 1991; Wexler 1993; Winick 1997; Erez
et al. 2011). Many have looked at victim participation in criminal proceedings
from this perspective, arguing that victims may reap great benefits from participa-
tion in their case because the sense of active involvement may aid their emotional
recovery process (Wemmers 2008). However, certain conditions apply in order to
ensure that participation is therapeutic and not anti-therapeutic (Wemmers 2008).3
One such condition is procedural fairness.

Looking at victim interests through a procedural

justice lens

The procedural justice model

Procedural justice theory derives from the seminal work by John Thibaut and
Laurens Walker, who in the 1970s published the results of a series of laboratory
studies set up to examine participants’ preferences for different dispute resolu-
tion procedures, for example arbitration, autocratic decision making, or mediation
(Thibaut and Walker 1975). They demonstrated that perceptions of fairness are not
only associated with the fairness of the outcome, but also with how this outcome
is reached, and that outcome and procedure independently affect overall fairness
assessments. Moreover, participants in their experiments consistently displayed a
preference for dispute resolution procedures that allowed them a certain degree
of process control or ‘voice’. For example, they preferred those procedures offer-
ing the conflicting parties opportunities for presenting their views and evidence
supporting their argument to those that did not. Thibaut and Walker understood
participants’ interest in process control to be instrumental: in their view, litigants
value process control or ‘voice’ because it may help them to get the decision
maker to take a decision that is favourable to them.
Thibaut and Walker’s observations inspired multiple studies on the issue; two
ground-breaking studies in this respect were those by Tyler (1987) and Lind
et al. (1990). Both showed that litigants value the opportunity to address the deci-
sion maker and state their case regardless of whether doing so actually influences
the decision. Tyler et al. (1985) called this the ‘value-expressive’ effect of voice,
which they contrasted with the instrumental importance of voice. Tyler (1987)
hypothesized that the reason why people heavily value opportunities for voicing
280 Tinneke Van Camp and Vicky De Mesmaecker

their opinion in the course of dispute resolution procedures is that (not) being
offered to do so affects their self-esteem. This stance incited research on so-called
non-instrumental or relational concerns that play a role in justice judgements
(Lind and Tyler 1988; Tyler 1989, 1990; Tyler and Lind 1992). Multiple stud-
ies empirically supported the idea that fairness matters to litigants because being
treated in an unfair manner by an authority figure suggests that one is not a valu-
able member of the societal group that the authority represents (Tyler et al. 1996;
Tyler and Blader 2003).
Lind and Van den Bos (2002) uncovered a third reason why procedural fair-
ness matters in demonstrating that perceived procedural justice is particularly
important when disputants are facing uncertainty. They identified two sources of
uncertainty: informational (or environmental) and personal uncertainty. The first
source is related to the notion that disputants need information to assess conflict
resolution procedures. Unfortunately, in practice, process and/or outcome related
information can be unclear or incomplete (Lind and Van den Bos 2002; Van den
Bos 2009). Research revealed that under circumstances of informational uncer-
tainty, the impact of procedural fairness on the overall appreciation of an interven-
tion is more important than under conditions of informational certainty (Lind and
Van den Bos 2002). Several empirical studies have demonstrated that in addition
to informational uncertainty, personal uncertainty impacts fairness assessment.
Personal uncertainty is described by Van den Bos (2009) as the aversive feeling
that results from doubt, lack of control or instability in views of the self and/or
the world as a consequence of certain unpleasant events or contextual factors.
It intensifies the impact of voice and procedural fairness on the overall fairness
assessment of a certain intervention (De Cremer and Sedikides 2005; Van den Bos
et al. 2008; Van Hiel et al. 2008). Uncertainty is an uncomfortable and discon-
certing feeling that people wish to eliminate or at least reduce and they seem to
do so by focusing on the fairness with which their conflict is being handled (Van
den Bos et al. 2008). As such, managing uncertainty presents itself as a justice
motive (Lind and Van den Bos 2002), in addition to the relational justice motive
that is apparent in Lind and Tyler’s model of procedural justice (1988; see also
De Cremer and Blader (2006), Hollander-Blumoff and Tyler (2008) and Kazemi
and Törnblom (2008)).
Three categories of non-instrumental or relational concerns have been identi-
fied that are commonly regarded as the antecedents of perceptions of procedural
fairness among litigants. The first is voice. Voice was defined by Folger (1977) as
the opportunity for parties involved in a conflict to participate in decision making
procedures concerning their conflict and to express their views throughout the
procedure. Wemmers (1996), who conducted one of the first studies to explore
the significance of procedural justice for victims of crime, highlights that actually
being heard by the decision maker is an important aspect of voice. Not only does
being able to express oneself matter, but so also does the impression that one was
heard by the decision maker (see also Tyler 1987). The other two antecedents
of procedural fairness are the quality (or fairness) of treatment and the quality
 Procedural justice 281

(or fairness) of the decision making process (Tyler and Blader 2000, 2003; Tyler
and Huo 2002; Blader and Tyler 2003a, 2003b). Judgements of the quality of
treatment depend on litigants’ perceptions of whether they have been treated with
dignity and respect by the legal authorities, whether the authorities have shown
concern for their needs and whether their rights have been acknowledged. Judge-
ments on the quality of the decision making process are determined by people’s
views on whether the decision maker bases its decision on accurate and truthful
information, eliminating every possible ground of partiality or discrimination, and
behaves in an honest way.
Throughout the years, research on procedural justice in different cultures has
shown that these antecedents apply in a consistent way across cultures (see e.g.
Lind et al. 1994, 1997; Sugawara and Huo 1994; Ohbuchi et al. 2005) and matter
independently of demographic characteristics such as gender, education or age
(Tyler 1988, 1994).

Why procedural justice matters to victims of crime

Empirical studies on procedural justice have focused largely on workplace con-
flicts, civil law conflicts or group dilemmas, but procedural justice researchers
have also taken an interest in perceptions of the fairness in dealing with criminal
offences (e.g. Tyler and Wakslak 2004) as well as in general interpersonal conflict
resolution methods (e.g. Mikula 1993). The framework has also been applied to
victim experiences and satisfaction with criminal justice proceedings (Wemmers
et al. 1995; Wemmers 1996, 2010; Malsch and Carrière 1999; Wemmers and Cyr
2006a; Bradford 2011). Procedural justice has, for instance, been associated with
victim empowerment4 (Cyr and Wemmers 2011) and absence of secondary vic-
timization (Orth 2002). In other words, findings in this regard indicate that proce-
dural justice matters to victims of crime, the reason for which is twofold.
First, victims value procedural justice because being allowed voice, a fair
treatment and fair decision making affirm their standing in the group (Wemmers
et al. 1995). Through involvement, victims are not primarily looking to influence
judicial decisions in their case (Wemmers 1996); instead it offers them assurance
that they are being taken into consideration and are deserving of fair treatment.
In other words, procedural justice does not serve an instrumental purpose, but a
normative one (Wemmers et al. 1995), as is explained in the relational model of
procedural justice presented by Lind and Tyler (1988). Put differently, procedural
justice matters because victims are looking for recognition.
Second, victims can experience a loss of control as a consequence of victimi-
zation. Victims have experienced an adverse event, which can be destabilizing.
Recovery then requires that they regain control (Herman 1997). One such form
of control could be to have insight into what is going on and how the police
and judicial actors are dealing with their complaint. A lack of such information
has been found to be an obstacle to empowerment (Cyr and Wemmers 2011).
The criminal justice system can be intimidating to victims and is experienced as
282 Tinneke Van Camp and Vicky De Mesmaecker

complex and non-transparent (Lemonne and Vanfraechem 2010), despite many

legal initiatives to support victims throughout criminal proceedings. Also, a com-
plaint passes through different services and through the hands of different judicial
actors before a final judicial decision is taken. Only when victims have sufficient
and transparent information about, for instance, the different investigatory and
prosecutorial actions taken in their case, as well as about the timing and results
of these actions, do they learn that their case is being taken seriously and what
is expected of them in the process (Goodey 2005). Information and involvement
allow first-hand insight into the proceedings and enable victims to assess whether
their complaint is being dealt with in a fair manner. If they are certain they are
being treated fairly, confidence in the criminal justice system increases (Wemmers
1996). In other words, the importance of procedural justice for victims of crime
could theoretically also be related to managing uncertainty, although this has, to
our knowledge, not been empirically verified as such.

Accounting for procedural justice in practice

After having established that procedural justice matters to victims of crime, we
will move onto how it can be delivered. In what follows, we examine the potential
for compliance of two particular forms of victim participation, VIS and VOM,
with procedural justice antecedents.

Victim impact statements

A good number of common law jurisdictions and some civil law jurisdictions
have enacted provisions giving (certain categories of) victims the right to submit a
VIS.5 A VIS is a written or oral statement in which the victim of a crime describes
the physical, material, psychological and social harm he/she suffered as a result of
the crime (Erez 1991, 1999). In some jurisdictions, the victim may include his or
her opinion on the sentence to be imposed on the offender(s), which may be taken
into account by the court in the sentencing phase of the trial.6 The VIS is added to
the case file for the judge, the prosecutor and the defendant and his/her lawyers
to read; in many jurisdictions victims are also allowed to read aloud their VIS in
court during the trial.
VIS, as Clarke et al. (2003, p. 4) put it, allow victims to ‘personalize’ the crime.
By way of a VIS, victims can provide personal input in the criminal procedure
that is otherwise extremely rational and not particularly receptive to the personal
views and concerns of victims (Joutsen 1994). This stands in stark contrast to
a situation in which victims depend on the prosecutor to convey their suffering
to the court and the defendant (Karmen 2012), since the ‘transformation of lay
events in judicial ones’ (Messmer 1997, p. 137) implies the simplification of typi-
cally complex and emotional events. VIS, then, potentially serve an important
communicative function (Roberts and Erez 2004; Szmania and Gracyalny 2006;
Roberts 2009).
 Procedural justice 283

The VIS has been a controversial instrument from the very start, since it her-
alded a fundamentally different role for victims within the criminal justice system
and introduced emotions in the legal sphere. After a period in which victim rights
were largely limited to service rights such as a right to information or support, the
VIS invited – and continues to invite – quite some sceptical and critical responses,
which relate in particular to the effect of the introduction of victim statements
on sentence severity and on defendants’ rights (see e.g. Bandes 1996; Ashworth
2000). Empirical evidence has consistently countered such criticism, invariably
demonstrating that the introduction of VIS had no significant impact on aggregate
sentencing practices and that VIS do not infringe upon the rights of the defendant
(Roberts 2009).
In this chapter, however, we are concerned with the way the right to submit a
victim statement affects victims of crime. Based on a review of studies on this
topic, Roberts (2009) concludes that empirical findings demonstrate that the
majority of victims who submitted a victim statement benefited from the expe-
rience, felt better after submitting the statement, would do so again and would
recommend other victims to file a VIS (see e.g. Leverick et al. 2007; see also Lens
et al. 2010). Meanwhile, victims have also reported a number of problems regard-
ing the procedure of filing a victim statement (for an overview see De Mesmae-
cker 2012), which warrants a careful examination of the instrument. In this chap-
ter we explore the potential of VIS to enhance perceptions of procedural justice.
Note that the daily practice and legal provisions on VIS vary across countries and
jurisdictions, which puts limits to our analysis. But despite the great variation
in VIS schemes and implementation practices, a number of commonalities and
trends can be detected.

Voice
Above, we defined ‘voice’ as consisting of two aspects: the opportunity to
express one’s views about the conflict to the decision maker (Folger 1977), and
the impression that one was heard (Wemmers 1996). The first aspect of voice,
namely to present one’s views, is precisely what VIS aim to facilitate. Princi-
pally, VIS have been introduced to allow victims to express their concerns to the
court, providing the court with information about the nature and seriousness of
the crime that may be useful when meting out the sentence (Erez 1991). As such,
VIS offer victims the opportunity to have their voice heard and their concerns
recorded. Victims have in addition been found to value the VIS particularly as
an important tool for communicating the impact of the crime to the offender and
the general public (Kool et al. 2002; Szmania and Gracyalny 2006; Lens et al.
2010; Roberts and Manikis 2011). Nevertheless, two limitations seem to exist
with regard to the degree to which VIS comply with this first aspect of voice;
these are associated with the extent to which victims are in fact free to express
their views through VIS.
284 Tinneke Van Camp and Vicky De Mesmaecker

First, throughout a number of studies victims have been found to express

dissatisfaction about the limitations put on the content of VIS in many juris-
dictions, denouncing in particular the prohibitions on expressing their opinion
about sentencing (see e.g. Hoyle et al. 1998; Graham et al. 2004; Lens et al.
2010) or on talking about the offence itself (Lens et al. 2010). Also, in some
jurisdictions, for example New-Zealand, England and Wales and a number of
American states (for more details, see De Mesmaecker 2012; on England and
Wales’ specific regulations see Roberts and Manikis 2013), VIS are prepared by
justice officials. In such cases, the statement may not accurately reflect the harm
experienced by the victim. Though some research reports victims being satis-
fied about the way the official had completed their statement (Lens et al. 2010),
other studies suggest that victims may feel that their concerns and views have
not been correctly recorded by the official writing their statement (e.g. Kool
et al. 2002; Graham et al. 2004).
The second limitation to expressing one’s views through a VIS is related to
the nature of the criminal proceedings in which VIS are being implemented, in
particular to the fact that communication in courtrooms is restrained. Courtroom
communication is meant to fit a predefined procedure and to take place within
what Strang (2004, p. 101) calls the ‘bounds of civility’ of the courtroom, which
may limit personal accounts of the crime (Messmer 1997; Englebrecht 2008).
For instance, victims participating in a study by Englebrecht (2008) said they
experienced limitations regarding the type of language they were allowed to use
in court. Attorneys, judges and victim advocates asked victims for example not to
use any derogatory or inflammatory language towards the defendant, which made
some victims feel they could not fully express their emotions. One needs to also
consider that not all victims are allowed to read their statement in court during the
sentencing hearing – in England and Wales in particular, victims are only afforded
a right to a written statement (Roberts and Manikis 2013). The restriction to a
written statement could hamper victim voice and as such limit the communicative
value of the VIS.
With respect to the compliance of VIS with the second aspect of voice, that is,
the feeling that one was heard by the decision maker, we need to consider research
on the question of whether judges convey signs of having read and understood the
VIS to victims. One of the few studies that examined how often judges directly
address victims present during court hearings was conducted by Roberts and
Edgar (2006) in Canada. The exact question judges were asked was: ‘Do you ever
address the victim directly in delivering oral reasons for sentence?’ A little under
two-thirds of the judges participating in the study said they ‘often’ or ‘sometimes’
address the victim directly on this occasion. Lens et al. (2010) report that in the
Netherlands in two thirds of the cases either the judge or the prosecutor refers to
the victim statement during the trial, and that victims are usually satisfied with the
attention paid to their statement by the judge. Obviously not all victims are present
at sentencing hearings. As for written comments providing recognition of the VIS,
 Procedural justice 285

which is important to victims absent from the trial, Erez and Rogers’ (1999) Aus-
tralian study is relevant. They quote judges as saying they refer to the VIS in their
sentencing remarks whenever possible. These are all positive findings with a view
to the development of perceptions of procedural justice, though research on this
point is as yet rather limited.
In conclusion, VIS seem useful vehicles for communication by victims to their
offender and to the judge, yet a number of limitations exist as well. These are related
to the rigid nature of court proceedings within which VIS are implemented and
the regulations regarding what victims are allowed to include in their statements.
These limitations are not easily remedied as they need to be balanced against other
rationalities of the criminal proceedings. Yet two clear recommendations for good
practice result from our analysis. The first recommendation is for judges to sys-
tematically try to incorporate a reference to the VIS in their sentencing comments
or during the sentencing hearing. When judges publicly acknowledge that the VIS
was read and heard, they could positively impact victims’ perceptions of having
had a chance for voice. The second is to ensure that victims who do not wish to
completely relinquish control over the content of their statement to a professional
are indeed permitted to write their statement in person, meanwhile still making
sure that assistance by a victim advocate or another professional is available to
them. As we will see below, such assistance is greatly valued.

The quality of treatment

In a number of countries that grant victims the right to submit a VIS, victims write
their statements by themselves; in other countries, another person is in charge of
preparing it (Erez 1999). Those victims who write their VIS themselves, however,
may be assisted throughout this process by professionals. These are usually victim
support workers (e.g. in the Netherlands)7 or victim advocates (e.g. in the United
States, see Szmania and Gracyalny 2006); in the United States, prosecutors too are
involved in the process of completing a VIS (see Englebrecht 2008). Hence, when
discussing whether the procedure of filing a VIS may contribute to perceptions of
qualitative treatment, one must differentiate between those victims who complete
their statements on standard forms in the privacy of their homes and those who
are assisted by professionals.
As for those victims who receive help or support from victim services when
submitting a VIS, we may refer to a Belgian qualitative study on victims’ expe-
riences with victim services showing that victims tend to be very satisfied with
the support delivered by victim services, including the support received when
filing a VIS (Lemonne and Vanfraechem 2010). Furthermore, Bradford (2011)
found contact with victim services to be linked to more favourable views of the
fairness of the criminal justice system. High quality treatment by victim sup-
port workers assisting victims in the process of filing a VIS may, then, enhance
perceptions of procedural justice. The same is true for those victims who have
286 Tinneke Van Camp and Vicky De Mesmaecker

regular contact with the prosecutor during the preparation of the VIS, though, to
our knowledge, this seems to be applicable exclusively to the United States and
much depends on the quality of the interpersonal contact with the prosecutor
(Englebrecht 2008).
If assistance of victim support services or prosecutors is absent, however, vic-
tims may experience little interpersonal contact with any of the officials involved
in the administration of justice. This does not necessarily imply that such vic-
tims have no ground on which to judge the quality of the treatment they receive.
Leferink and Vos (2008) and Lens et al. (2010), for example, found the Dutch
victims participating in their studies saying that the mere existence of the oppor-
tunity of participating in the criminal procedure by means of a VIS gave them
a feeling of being acknowledged and being taken seriously. The opportunity to
orally submit one’s statement to court too contributed to these victims feeling
acknowledged and having the impression that they had been taken seriously (Lens
et al. 2010). However, in Canada, Wemmers and Cyr (2006b) did not find that VIS
satisfied victims’ need for recognition. Hence, we are faced with mixed evidence
concerning the degree to which perceptions of qualitative treatment may proceed
from the mere existence of a legal provision on VIS.
The contradictory nature of these findings may be due to variations in actual
practice and implementation of VIS schemes. Future research should therefore
compare different VIS schemes to validate the impact of (absence of) interper-
sonal contact on victims’ perceptions of qualitative treatment. An important task
to be taken up by such research is to compare fairness assessments by victims who
were assisted when writing their VIS with fairness assessments by those who had
no access to such assistance.

The quality of decision making

Allegedly, victims who file a VIS perceive this to be a contribution to the quality
of decision making. Indeed the opportunity to describe the harm sustained as a
result of the crime in a statement that is added to the case file may alleviate the
concern that victims’ views are less prominently present in trials than offenders’
views and that offenders have more rights than victims. This concern was voiced
by the victims interviewed by Englebrecht (2011); they indeed tended to compare
their position in the process to the defendant’s. Having the right to file a VIS, then,
may enhance the victim’s perception of equal treatment of all parties and imparti-
ality of the decision maker.
Meanwhile, studies on VIS also demonstrate that many victims feel that their
statement was not taken into account by the judge in his decision. Only 29 per cent
of the victims participating in Roberts and Manikis’ (2011) England and Wales
study thought their statement had been fully taken into account; an additional 28
per cent felt their statement had been taken into account ‘to some extent’. The
other victims either did not know whether their statement had been taken into
account (14 per cent) or had the feeling it had not (18 per cent). Similar results
 Procedural justice 287

come from the Dutch study of Lens et al. (2010): although victims were convinced
that their VIS would assist the judge in making a decision, when asked whether
they thought their statement had actually impacted the case outcome or whether
they thought the judge had taken their statement into account when deciding on
the sentence, they were less optimistic. Englebrecht (2008) too reported that many
of the victims participating in her US study had the impression that their statement
actually had little impact on the outcome of the case, which caused frustration and
disappointment.
In conclusion, the analysis shows a clear pattern. The concerns about VIS out-
lined above seem to be related to its implementation rather than to the instrument
itself. It seems in fact that VIS have great potential for enhancing perceptions of
procedural justice, yet the way VIS are implemented shows flaws that prevent this
potential from being fulfilled completely (see also Crawford (2000, p. 290) who
speaks of an ‘implementation failure’ and Walklate (2012, p. 113), who identi-
fied an ‘implementation gap’). Based on procedural justice theory, we argue that
including verbal acknowledgement of the concerns voiced in a VIS and interper-
sonal contact in all the VIS schemes could enhance perceptions of procedural
fairness.

Victim–offender mediation
Another particular form of victim participation is the restorative justice prac-
tice of victim–offender mediation (VOM). Restorative justice is about facilitat-
ing active involvement of victim and offender in the settlement of the conflict,
bringing about communication between them and working towards a settlement
of the conflict that satisfies all (Van Ness 1997; Zehr and Mika 1998; Wemmers
2002; Strang and Sherman 2003; Umbreit et al. 2006). VOM, the most commonly
implemented restorative practice worldwide (Umbreit 1994a; Vanfraechem and
Aertsen 2010), involves the voluntary participation of the victim and offender of
a particular offence. Both parties are assisted by a trained mediator who conducts
shuttle mediation (i.e. travels between victim and offender to facilitate indirect
communication between the parties) and possibly a face-to-face meeting (Groen-
huijsen 2000; Umbreit et al. 2004). Whereas VIS is implemented within the crimi-
nal justice system, VOM rather operates in the margins of the criminal justice
system, either as a complementary or diversionary procedure.
Numerous evaluative and comparative studies offer encouraging indications
as to the satisfaction with and beneficial impact of restorative justice felt by
victims of various types of crime (including property crime and crime against
a person; see Wemmers and Canuto (2002), Poulson (2003), and Sherman and
Strang (2007)). Findings from evaluative studies on the benefits of restorative
interventions, such as VOM, for victims of crime who agreed to participate, are
consistently positive, even more consistently so than data on the impact of these
interventions for offenders (such as reoffending; see Sherman and Strang (2007)).
On the basis of a meta-analysis of evaluative findings on restorative practices and
288 Tinneke Van Camp and Vicky De Mesmaecker

their benefits for victims, Sherman and Strang (2007) conclude that restorative
justice outperforms the criminal justice proceedings on various accounts. Vic-
tim satisfaction, for example, is generally very high (Sherman and Strang 2007;
Shapland et al. 2011). Victims who participate in VOM are also more likely to
get compensation in comparison to victims who only follow the criminal jus-
tice proceedings (Braithwaite 1999; Latimer et al. 2005). Furthermore, they are
more likely to believe that the offender has been held accountable (Poulson 2003;
Sherman and Strang 2007) than victims who only went through the criminal jus-
tice proceedings. VOM has been associated with a healing or therapeutic impact
on victims (Wemmers and Cyr 2005; Shapland et al. 2007; Rugge and Scott
2009) and with reduced levels of fear and anger (Strang et al. 2006) and reduced
symptoms of PTSD (Angel 2008). Moreover, victim-participants would recom-
mend VOM to other victims (Sherman and Strang 2007).
Yet VOM is not for everyone. Based on their review of empirical studies on vic-
tim experiences with restorative justice, Wemmers and Canuto (2002) conclude
that a minority of victim-participants report a negative impact, such as increased
stress, following participation on a restorative intervention. Daly (2004) warns
restorative justice proponents for being overly optimistic and highlights the need
for having realistic expectations as to what can be expected of restorative justice
for victims of crime. However, the negative impact on victims’ well-being could,
according to Wemmers (2009), be averted with a better selection of cases referred
to VOM. Also Daly (2004) emphasizes that traditional criminal justice proceed-
ings are more likely to cause secondary stress than restorative procedures do.
While the evidence in favour of offering restorative justice to victims is abun-
dant, data giving insight into why exactly victims benefit from restorative justice
is only sparsely available (Sherman and Strang 2007; Vanfraechem and Aertsen
2010). Vanfraechem and Aertsen, therefore, urge researchers to explore factors
that mediate and influence victim appreciation of restorative justice, including
perceived fairness. The emphasis in VOM on involvement of the affected parties,
indeed, infers that it holds a great potential to comply with procedural justice
(Aertsen 2004; Braithwaite 2006; Shapland et al. 2006). A few studies explore the
significance of procedural justice determinants for victim appreciation of VOM
and offer empirical support for this assumption. The findings of our own qualita-
tive studies further advance this idea (De Mesmaecker 2011; Van Camp 2011).
We interviewed victims of violent and property crime in Belgium and Canada
who participated in VOM and learned that appreciation of VOM is related to the
different antecedents of procedural fairness.

Voice
There are considerable indications that voice is a prominent contributing factor
to the appreciation of VOM. Early evaluative studies under the supervision of
Umbreit (1989, 1994b) in the USA and a more recent study by Shapland et al.
(2011) in England and Wales reveal that VOM is appreciated by victim-participants
 Procedural justice 289

for the opportunity it offers to express themselves and contribute to the search
for a solution. The opportunity to communicate with the offender, either directly
in a face-to-face meeting or indirectly through shuttle mediation, seems to serve
multiple expressive needs victims experience, that is, to describe the multiple
consequences of victimization to the offender, to raise victim awareness and to
express emotions to the offender (ranging from anger and sadness to forgive-
ness; see Van Camp (2011) and Van Camp and Wemmers (2013)). In addition,
victims appreciate having the choice between meeting the offender face-to-face
or limiting the intervention to shuttle mediation and making arrangements as to
the topics to address and which to avoid with the offender (Van Camp 2011). As
such, VOM complies with the elements that have been associated with ‘voice’ by
pioneers of procedural justice research such as Folger (1977), that is, the oppor-
tunity to participate and present one’s views.
Moreover, Wemmers and Cyr (2004 2006b), who applied the procedural justice
model to victims’ perceptions of VOM in Canada, found that victims also had a
strong sense of having been heard and their concerns taken into account. Hence,
VOM also responds to the need to be heard, which Wemmers (1996) found to be
significantly associated with perceived justice. Victims find it liberating to express
their concerns and feelings and to be heard by the offender (Wemmers and Canuto
2002; Sherman and Strang 2007; De Mesmaecker 2011; Shapland et al. 2011; Van
Camp 2011). According to Shapland et al. (2011), it is such interpersonal com-
munication that victims who agreed to participate in a restorative intervention,
including VOM, were looking for when accepting the offer. Messmer (1997), who
conducted a study on victim–offender interactions in VOM, found that for the
parties involved in mediation to develop mutual understanding, communication
about the conflict, including opportunities for responding to one another’s inter-
pretations, is key. Being witness to the offender’s immediate responses and reac-
tions to their story and being able to discuss these further is significant to victim
appreciation of VOM (Sherman et al. 2005; Strang et al. 2006; Van Camp 2011).
In other words, VOM does not only facilitate the opportunity to speak and be
heard, but offers a chance for dialogue, as such complying with and even going
beyond the procedural justice model. Such a dialogue allows getting answers that
are not provided in the judicial case file and trial and can only be retrieved directly
from the offender. Since the dialogue between victim and offender in the con-
text of VOM is confidential, the offender could be encouraged to be honest (Van
Camp 2011). New understandings of the offence are important for victim recov-
ery (Aertsen et al. 2011) and knowing the truth about what happened diminishes
uncertainty and might enable victims to find closure (Shapland et al. 2007).
Nevertheless, the degree of involvement in restorative justice is substantial
and communication with the offender might not appeal to all victims. While VIS
is more of a one-time opportunity to express one’s concerns, VOM represents a
more active involvement and often includes multiple contacts with the mediator
and offender. Consequently, mediators should interpret the readiness of victims
with care, but should also avoid persuading (or dissuading) victims to participate
290 Tinneke Van Camp and Vicky De Mesmaecker

(Jacobson et al. 2012). Victims appreciate that they are not pressured into partici-
pation and that they can freely accept the offer of VOM or reinitiate it after an
initial refusal (Umbreit et al. 2002).

The quality of treatment

VOM is associated with a perception of fair treatment by victim-participants
(Shapland et al. 2011). The interaction with the mediator is found to be key in
the appreciation of VOM (Pruitt et al. 1993; Umbreit 1994b; Umbreit et al. 2006;
Shapland et al. 2007). Commonly, VOM starts with an individual meeting with
the mediator (in which the mediator explores the willingness to participate) and
is followed by shuttle mediation (in which the mediator travels between victim
and offender to transfer messages, possibly leading up to a face-to-face meeting).
Interaction between the mediator and the victim is therefore inherent to the restor-
ative practice of VOM. Whereas VIS schemes do not by default imply interper-
sonal contact with a victim advocate or another professional actor, interpersonal
contact is implied in VOM.
Moreover, the individual meetings with the mediator offer opportunities to pro-
vide participants with information about the procedure and possible outcomes.
Such information is associated with increased victim satisfaction with VOM
(Strang and Sherman 2003; De Mesmaecker 2011; Wemmers and Raymond 2011).
In general, being provided with clear and complete information about an interven-
tion increases perceptions of fairness (Van den Bos 2009). Victims indeed perceive
the restorative procedure as transparent and comprehensive, which seems to con-
tribute to their satisfaction (Van Camp and Wemmers 2013). In their interactions
with the victim and offender, the mediators can get a feel for what the victim and
offender wish to ultimately get out of the intervention and prepare the procedure
and each of the participants accordingly. Consequently, in their interaction with
the mediator, victims are supported in developing realistic expectations about the
process, outcome and the offender’s motives to participate (Van Camp and Wem-
mers 2013). As such, uncertainty about the process and possible outcome can be
attenuated through interaction with the mediator.
In addition to the quality of the treatment by the mediator, the attitude of the
offender also matters. In her qualitative study, Van Camp (2011) found that vic-
tims, who felt that the offender respected them for participating in VOM or for
what they communicated to the offender, associate this with a sense of recogni-
tion and validation. Another particular element of victim appreciation with VOM
is the opportunity to hold the offender accountable and for the offender to accept
responsibility and recognize the consequences of victimization (Umbreit 1989;
Strang et al. 2006; Shapland et al. 2007). The comparative studies on restorative
justice reviewed by Poulson (2003) reveal that victims are five times more likely
to feel that the offender was held accountable in VOM than in court proceedings.
Wemmers and Cyr (2005) note that an offender is required to accept responsibil-
ity for the crime in order to participate in VOM. This condition could hence be
 Procedural justice 291

conducive to the victim-participants’ perception of recognition. In terms of the

procedural justice model, recognition confirms to victims that they are valued
members of society. Respect and fair treatment matter because they represent rec-
ognition, and recognition is restorative.

The quality of decision making

Another distinctive determinant of procedural justice is the quality of decision mak-
ing and the neutrality of the decision maker. VOM, however, is a bilateral proce-
dure and allows victim and offender to work out an agreement (Wemmers 2002),
both in its diversionary set-up or as a complementary procedure to the criminal
proceedings. The mediator is a facilitator and does not impose any decisions. As
such, strictly speaking, the decision making within VOM does not belong to an
authority, but to the victim and offender. While victims are generally more inter-
ested in process control than decision control (Wemmers 1996), the way a VOM
progresses might make the decision control implied by VOM more manageable.
The mediator guides the victim and offender towards a solution through a process
of preparation and shuttle mediation. De Mesmaecker (2011) and Van Camp (2011)
both found that victim-participants appreciate the capacity of mediators, in their role
as facilitator, to remain neutral throughout this process and this contributes to the
appreciation of VOM. Mediators assist both parties equally in their communication
and respect both parties’ choices for involvement. The mediator works with the
victim and offender in individual meetings for as long as needed and as long as the
parties are willing. VOM is, therefore, not a one-shot deal meeting, but an inten-
sively and cautiously prepared communication. As such, despite the bilateral nature
of VOM, ‘victims find mediation fair because it offers them recognition and respect
through consultation, not because it allows them to make demands’ (Wemmers and
Cyr 2006b, p. 123).
The decision control implied by the bilateral nature of VOM seems also more
acceptable because VOM is perceived as an informal procedure, as opposed
to the highly formal proceedings in the criminal justice system, including VIS
(Shapland et al. 2006; Van Camp 2011). Victim-participants in VOM seem will-
ing to accept informal decision control and are still looking for the offender to
be held formally accountable and to have a third party maintain final decision
making power (Van Camp 2011). As such, victims seem to support the idea that
restorative justice and the criminal justice system can function independently
(Van Camp and Wemmers, 2013).

Conclusion
While victimologists are clear on victim concerns and what victims are look-
ing for in the criminal justice system, there is much debate on how to meet
those concerns. This is true especially for the victims’ concern for involvement
in the criminal proceedings. Different forms of victim participation have been
292 Tinneke Van Camp and Vicky De Mesmaecker

introduced to respond to this need. In this chapter we have looked into the
degree to which two specific forms of victim participation in criminal justice,
VIS and VOM, comply with one particular condition, procedural justice.
Our review suggests that, on the one hand, for VIS to achieve their full potential
of enhancing victims’ perceptions of procedural justice they should be accompa-
nied by interpersonal contact in the form of assistance in completing the form and
by clear acknowledgement of the victims’ concerns expressed in the VIS by the
judicial officials. The lack of interpersonal contact with the decision maker and
the other party as well as the formality of the courtroom context in which they are
used can lead to VIS not fully meeting the different procedural justice require-
ments. VOM, on the other hand, seems to apply the procedural justice model
particularly well. With its attention to the parties’ voices, interactional quality and
transparency, it provides victims with the recognition they are looking for. Good
interpersonal contact with the mediator is key. Such interpersonal contact is inher-
ent in the concept of VOM, as opposed to filing a VIS, which is not automatically
accompanied by support from a victim advocate. Moreover, VOM, as opposed to
VIS, encourages the expression of emotions and direct interaction between victim
and offender. Nonetheless, not every victim is interested in VOM and attention
should be paid to ensure that other forms of victim participation are also in place
to award victims a procedurally fair treatment.

Notes
1 Regarding this concern for punishment of the offender, note that victims are not gener-
ally vindictive or retributive. It is a misapprehension that victims expressing a concern
for the offender to be held accountable want to see the offender suffer. In fact, research
shows that, rst, victims have very nuanced and deliberated opinions on the sentence to
be imposed on their offender, and, second, the reason victims want the offender to be
held accountable often relates to their concern for acknowledgement and for offender
rehabilitation (Umbreit 1989; Sprott and Doob 1997; De Mesmaecker 2011; Van Camp
2011; Bolívar 2012a). Furthermore, victims do not seem to feel a need to decide on the
sentence (Wemmers and Cyr 2004; De Mesmaecker 2011).
2 The term ‘community of care’, used mainly in restorative justice literature, points to indi-
viduals with whom victims have a meaningful personal relationship (McCold 2004).
3 Although therapeutic jurisprudence literature has left the term ‘therapeutic’ rather
vague and different views exist on what it means exactly, Winick (1997, p. 192), one
of the founders of therapeutic jurisprudence literature, has conceptualized it broadly as
‘anything that enhances the psychological well-being of the individual’. The therapeu-
tic jurisprudence literature is based on the viewpoint that traditional legal paternalism
is anti-therapeutic, that is, it may negatively affect litigants’ well-being, and instead
stresses the importance of individual autonomy in legal procedures. On the denition
of ‘therapeutic’, see Winick (1997).
4 For their study, Cyr and Wemmers (2011) adopted the denition of empowerment
developed by Rappaport (1987, p. 122), which states that empowerment is ‘a process,
a mechanism by which people, organizations, and communities gain mastery over their
affairs’.
5 The United States, Canada, Australia and New Zealand were among the rst to enact
laws allowing victims to le a VIS, which they did throughout the 1980s. A second
 Procedural justice 293

wave of countries that introduced VIS legislation includes England and Wales, South
Africa, the Netherlands, Malaysia and Japan – all these countries introduced VIS after
the millennium.
6 Victim Statements of Opinion, as the type of victim statements that include victims’
opinions on sentencing are called, are only used in bifurcated trial systems. They are
not submitted to the court unless the defendant has been found guilty. To our knowl-
edge, none of the unitary trial systems that afford victims the right to submit a victim
statement allows victims to include their opinions on sentencing.
7 See www.slachtofferhulp.nl/Algemeen/Strafproces/Spreekrecht/.

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Chapter 15

Delivering justice to child victims

of crime
Navigating the support and criminal
justice systems
Ilse Vande Walle

Introduction
Each year thousands of children1 become victims of crime and violence. Some-
times these are very severe cases; sometimes they are less so. But in all cases, we
see that children are left affected by what happens to them. Research reveals that
young people are at a much greater risk of becoming victims of crime than the
general population, with the figures indicating that young people run twice the
risk of becoming victims than the population in general (Victim Support
Scotland 2011).
In the last years, a lot has changed for child victims. They have become increas-
ingly visible in public policy. The recent EU Directive establishing minimum stand-
ards on the rights, support and protection of victims of crime of the 25 October
2012 specifically singles out child victims as a group needing specific attention
‘due to their vulnerability to secondary and repeat victimization, to intimidation
and to retaliation’.2 A flurry of cross-national projects within the European arena
has sought to improve both the legislative (for instance the CURE-project)3 and the
practical assistance to child victims (for instance the MUSAS-project).4 Beyond
Europe, the United Nations has also seen fit to shine the spotlight on child victims,
culminating in the adoption in 2005 of the Guidelines on Justice for Child Victims
and Witnesses of Crime.
However, too often many young victims are still forgotten. They are not seen
by adults, and/or their reactions and needs are misunderstood and/or taken for
granted. This chapter specifically focuses on the ways in which child victim’s
needs, desires and experiences are misjudged by adults and other caretakers. It is
an abridged summary of the findings of research we conducted into child victim’s
experiences with the aftermath of crime in Flanders (Belgium), which culminated
in the book ‘Ik krijg het moeilijk uit mijn hoofd’ (‘It is difficult to get it out of my
head’, Vande Walle and Willems 2013).
The chapter considers the consequences child victims experience in the after-
math of crime and the way in which this is similar and different from adult vic-
tims. This is followed by a similar analysis of the child victims’ needs for support
 Child victims of crime 301

and assistance. Throughout the chapter representative quotes of the respondents in

the interviews are provided as illustration of the phenomena discussed.

The impact of a crime on children

The consequences of victimization by crime can be viewed on a number of
domains, which are often difficult to distinguish from each other (e.g. Letschert
et al. 2010). For the purpose of this chapter, we divide the consequences into
six different categories, five of which also apply to adult victims: psychological
and emotional consequences, physical consequences, financial and material con-
sequences, social and behavioural consequences, and legal consequences. To this
list we add a sixth category that is more relevantly idiosyncratic to the experience
of child victims, namely neuropsychological consequences.

Psychological and emotional consequences

Every child reacts differently during and after a crime. One child will panic.
Another child will cry. Another child will become angry. Yet another child will
freeze. And there is also a category of children who react as if nothing had hap-
pened and who just continue with whatever they were doing (Alisic 2012). Like
adults, children will display stress reactions after becoming a victim of a crime
(e.g. Ehlers and Clark 2000). With some children this may be more severe than
with others. And in most cases these reactions will disappear by themselves. A
large number of children will recover in a natural way, with the help of their own
social network.
Stress reactions that children display after a criminal event can be divided into
three different categories (Eland et al. 2000; Alisic 2011). First there are symptoms
of re-experiencing the event. At unexpected moments, memories of the traumatic
event will resurface. Those memories are re-experienced in conjunction with
severe anxiety. This can be so severe that the experience is felt to be re-lived. It is
as if the traumatic event happens all over again. Mostly, re-experiencing takes the
shape of individual images appearing to the victim; namely those images that are
most vivid to the child. This may not be the most frightening and/or threatening
moment of the event. It might be, for example, a mother’s last words to her child
before she dies. Re-experiencing events in this way often happens in very quiet
moments, for instance when the child is alone for a moment in a class or when he
or she goes to bed; indeed, it often coincides with nightmares. Apart from these
types of experience, children can also have other kinds of anxiety-filled dreams.
Children may also repeatedly play out or draw what happened to them.
Second, victims display avoidance in behaviour and thoughts of reminders of
the traumatic event. Patterns of re-experiencing are often interspersed with periods
of attempting to avoid reminders of the trauma. In these cases the child will avoid
people, things and places that remind him or her of what happened. Another way in
302 Ilse Vande Walle

which children avoid memories of the trauma is through a general numbing of their
emotions and reactions. They may not wish to play anymore. They may be gener-
ally uninterested in things around them. Or they may lose an interest in things that
formerly interested them, such as sports or music.
Finally there are symptoms of increased arousal. The child is very alert and
often anxious. He or she displays a sense of imminent danger. This can result in
difficulties sleeping, which in turn may cause fatigue, anger, stubbornness, dif-
ficulty concentrating and other psychosomatic problems.
These experiences are common to adult victims too. But, in the case of children
and youngsters, the following reactions appear to be more prevalent than in adult
victims (Alisic 2011):

• Feelings of guilt: Children may think that their own behaviour caused the
crime to occur. These feelings of guilt may also result from magical think-
ing, in that the behaviour appears in reality to be unrelated to the event. For
example, a child might feel that the quarrel he/she had with his/her sibling –
including shouting that he/she never wanted to see the sibling again – was in
some way the cause of the sibling’s death shortly after the argument.
• Regressive behaviour: Children might retreat to an earlier phase of develop-
ment. For instance they might start sucking their thumb again or wetting their
bed.
• Separation anxiety: The experience might reduce the extent to which a vic-
tim can stand to be separated from their parents. This separation anxiety can
result in tantrums and extreme distress when their parents are leaving or have
left. Children might display extreme clinging behaviour.
• Reckless behaviour: In adolescents in particular the traumatic experience
might give rise to reckless and risky behaviour, including abuse of drugs and
alcohol, dangerous physical activities and sexual behaviour. For many ado-
lescents this can be traced to their cognitions in the aftermath of crime that
‘the worst has happened, and nothing can happen to me now’.

In addition to the stress reactions described above, children also experience a

whole range of emotions such as anxiety and/or anger. They may feel lonely, help-
less or misunderstood. Or, they may blame themselves or feel a strong emotional
inclination to exact revenge. Becoming a victim of crime coincides with a loss
of trust. This may be loss of trust in themselves, the direct environment, society
at large and, in the most general sense, the assumption of a safe and just world
(e.g. Janoff-Bulman 1992). For children and youngsters this can result in a radical
change in their view and expectations of the future.
Like in the case of adults, for the majority of the children the symptoms will
decrease or disappear after a few weeks. But not for all children: a minority
develop a psychological disorder. The most common disorder after becoming
a victim of a traumatic event is Post Traumatic Stress Disorder (PTSD). The
development of PTSD is linked to risk factors and protective factors. Those
 Child victims of crime 303

factors are related to the event, the child, the family of the child and to the
environment (e.g. Beer and de Roos 2012). The age and developmental level of
the victim also play a role in the recovery after a trauma (Salmon and Richard
2002). There are a lot of similarities in the way in which children of different
age groups recover after a crime, but there are also differences between children
in different age groups, which are largely a function of the differential interac-
tion between the traumatic complaints and the particular development tasks at
various ages (Beer and de Roos 2012). Most stress-reactions of children are
similar across different cultures: inter-individual differences outweigh the inter-
cultural differences. But, nevertheless, there can be cultural differences in the
way traumatic events are interpreted; in the way the feelings associated with
trauma are put to words and play; and the interpretation of appropriate behav-
iour in the aftermath of trauma. Awareness of the possibility of ‘lost in transla-
tion’ of trauma is therefore an important element of support and assistance in
cross-cultural or multi-cultural settings (Alisic 2012).
Children and youngsters, who are confronted with a sudden, traumatic loss of
someone close to them, may also develop traumatic grief. In these cases, children
have to deal with both trauma and loss (Cohen et al. 2006).
In general terms, the traumatic reactions associated with the experience of
multiple traumatic events are similar to those associated with a single trauma.
But other factors are also relevant. For example, abuse of power by caregivers
in dependent relationships and the associated loss of trust and damage to feel-
ings of attachment in particular, are very important (e.g. Muller et al. 2000).
The continuous experience of stress for children exposed to chronic trauma, for
example through violence in the family or in the neighbourhood, may impact
the child’s overall physiology. Those children may have PTSD but are often
(mis)-diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) as sim-
ilar symptoms comprise both diagnoses (e.g. Henrichs and Bogaerts 2012). Of
course, not all children diagnosed with ADHD have stress reactions or PTSD,
but it is important to make the correct assessment, as the etiology of the two
disorders display relevant differences. Stress-related symptoms and behaviour
can be diagnosed with just a simple question asked of the child, such as: ‘What
is the worst thing that has happened to you in your life?’ or ‘Since the last time
I saw you, has anything really scary or upsetting happened to you?’5 Or if the
child is too young, the parents can be asked if something happened to their child
(Mannarino and Cohen 2011).

Physical consequences
Victims can suffer physical consequences that are directly caused by the crime.
For example, this may happen where they have been physically assaulted or oth-
erwise injured. In addition, in cases of sexual abuse the physical consequences
might also take the form of sexually transmitted diseases and/or pregnancy (see
Holmes et al. 1996).
304 Ilse Vande Walle

The psychological stress reactions mentioned above might also manifest them-
selves in physical symptoms. These often include excessive tiredness (due to the
heightened arousal) and psychosomatic complaints such as stomach aches, diges-
tive problems and headaches. Many of these latter complaints are regularly misin-
terpreted (Alisic 2012), either as ‘growing pains’ or attributed to another source.
This is particularly true if the child is not able to verbally express the source of
his/her anguish.

Financial and material consequences

For children as well as adults, crimes can have financial and material conse-
quences (e.g. Mulder 2013). Again, these can include direct consequences of the
crime, as in the case where the child’s property is damaged or stolen. In addition,
it is important to realize that property that to adult eyes may be of negligible value,
like a bike or a mobile phone, may be very important to the child.
In addition, this includes more indirect consequences, such as loss of income
to the parent, costs associated with seeking psychological help or navigating the
criminal justice system. Mostly, these sorts of indirect consequences are borne –
in the first instance – by the parents but, even so, they may have knock-on effects
for the child.

Social and behavioural consequences

Crime can have very significant social and behavioural consequences for child
victims. Again, these can be direct – the theft of a mobile phone may mean a
child cannot reach his or her friends until it is replaced. Child victims also fre-
quently engage in avoidance behaviour, which may have a significant effect on
their lifestyle. These types of changes are not always fully understood by adults.
Sometimes, adults may think the changes simply reflect the development phase of
the child, and not realize it is a specific response to the crime. The youngsters we
interviewed mentioned the following (Vande Walle and Willems 2012):

After a youngster of 15 was raped, she locked herself in her room, didn’t go
out with friends anymore, her parents thought this was normal, and just part
of adolescence.

In addition the impact of crime may influence the child’s parents: giving the
appearance of having a ‘different’ parent. This can also have social consequences
for the child.

Since my little brother died, my mummy is totally different. She always

was a nice mummy. And she still is, of course. A lot of friends used to come
over, she used to go with us on day trips from school. She does not do
 Child victims of crime 305

this anymore. I always try to be quiet in the house. I never talk about nice
things. And, certainly, I never ask for friends to come over any more.

One of the most striking findings in the literature is that victimization increases
the risk of renewed victimization (Farrell 2001). Indeed, studies have found that
the best predictor of future victimization is past victimization – holding true for
all types of crimes from property crimes to rape and sexual assault. In addition
studies show that young people, if they do not adequately cope with the conse-
quences of crime, may turn to crime themselves, not only when they are an adult
but also as a youngster. The link between victimization and offending does exist
and the link works in both directions, i.e. victimization predicts offending and
vice versa. A particularly strong link has been found to exist between offending
and victimization in relation to violent crime (for an overview see Lahlah 2013;
see also National Center for Victims of Crime 2002; Smith 2004; Owen and
Sweeting 2007).

Legal consequences
Although young people are more likely to become victims of crime than adults,
they are less likely to report being victimized. The reasons for this include not
knowing how to make such a report, or not trusting authority; thinking that what
has happened is normal and not worth reporting; and fearing reprisals from per-
petrators they know.6
Young people who do report being victimized are confronted with the crimi-
nal justice system. It is a well-known fact that the criminal justice process is not
always sensitive to the needs of child victims (e.g. Capone 2013). This is the case
even though child victims have been identified as a vulnerable group of victims
in the legislation of many states, and that in recent years there has been much
legislative activity concerning some categories of child victims, for example child
victims of human trafficking.7
Two studies in Scotland (Smith 2004; Victim Support Scotland 2011) con-
cluded that being a witness can be extremely stressful and re-traumatizing, both
before and during the trial.

Neuropsychological consequences
The human brain is complex (e.g. Perry 1999, 2001; Crone 2008) and consists
of tens of billions of neurons, which are connected with a large number of other
neurons. What is most special about these types of cells is that they have the abil-
ity to form networks and communicate. Everything that a human being does or
experiences is associated with some sort of brain activity. The brain’s structure is
more or less complete by the fourth month of conception. The only thing that hap-
pens after that is it expands and becomes more inter-connected. A good part of this
development happens after the birth of the child, in the first years of life.
306 Ilse Vande Walle

A critical concept related to memory and brain plasticity is the differential plasticity
of different brain systems at different stages of development. There are specific periods
when the brain is very flexible. This period is the perfect time for the brain to make
connections. But if the connections are not made in this period, it is difficult for this to
happen later. Accordingly either a lack of stimulation or damage at this time can have
very significant negative effects. Thus, it is not surprising that traumatic events may
alter brain functions. These alterations may manifest themselves as changes in emo-
tional behaviour and emotional functioning and, in some chronic cases, may contribute
to structural changes observable in the brain (Cohen et al. 2006).

Needs of children, victims of a crime

The consequences of victimization by crime lead to a number of different needs.
In this section we discuss the main needs that we ascertained from our interviews
and also discuss the bearing that these needs have on the role of parents and other
caregivers in the support of child victims of crime.

Need to express themselves

Although young people are more likely to become victims of crime than adults, they
are less likely to report being victimized, the main avenue through which adult vic-
tims receive support.8 Young people give different reasons for not reporting (Victim
Support Scotland 2011). They may minimize what has happened, often not recog-
nizing it as a serious event and/or constituting a crime, instead perceiving it as some-
thing that ‘just happens’, as a normal part of being young. They may be too anxious
about the consequences of reporting. This includes fear of the perpetrator(s); fear
of getting into trouble; fear of not being believed; and fear of being stigmatized by
peers. They may also mistrust adults, think that nothing will be done about their situ-
ation or be unaware of available support and/or lack of access to support.
If children do inform someone of what has happened, it is more likely to be
their parents, a teacher or their peers, than the authorities. But even in this case,
children can stay silent for months or years. This can be the cause of great regret.

I think it’s impossible not to tell anyone what happened. I didn’t tell anyone
for four months, until someone made an anonymous phone call about it to
the director at school. Then I didn’t want to deny it anymore. Of course I was
scared of the reactions of my parents and other persons. But I was also very
relieved that I could finally tell it to someone. Afterwards I think it was so
stupid of me not to tell anyone for such a long time. That period, I think, was
the most difficult time of my life.
(Girl 15, victim of rape)

Children need to express themselves. But this expression takes different forms com-
pared to that of adults, who normally express themselves through conversation.
 Child victims of crime 307

Children may also adopt this method: talking to someone else about their experiences
and feelings is considered a key protective factor preventing the pathway from vic-
timization to offending (see also Owen and Sweeting 2007).

I didn’t want to talk about it. But one moment it was all too much. I always
thought: if I don’t talk about it, it will all turn out well. But after a while I
noticed that it was not working. Hiding your feelings doesn’t work. You just
have to talk and express your feeling now and then.
(Girl 17, victim of a robbery)

But for some children other modes of expression may be preferable. It can be very
hard for children to talk about what has happened. Instead they might prefer to
express themselves by drawing, writing or listening to music.

It depends what kind of person you are. If the person is like me and doesn’t
want to talk, then you have to look for distraction. Like for me, my guitar. But
if the person is social and likes to talk, than it’s better to talk. But don’t talk
with just anyone; talk with someone who understands you.
(Boy 17, whose mother had been murdered)

I write letters to the offender. Letters which I will never send. Letters in which
I say how sad and angry I feel.
(Girl 11, whose little sister has been sexually abused)

Need for time and space to recover

It is important for children to have the feeling that there is time and space to recover,
when they need it, and a person who will give them time and understands them.

My mum supported me very well. She always said: ‘If there is something,
just come to me.’ If she could do something, she would have dropped her job
to support me.
(Girl 15, victim of sexual assault)

The teacher was there for me. She said: ‘Just tell me when it’s difficult, and
then you can go out for a moment.’ I found that a very good idea. So every
time I had a moment when it was difficult, I told her.
(Girl 11, whose sister has been sexually abused by her uncle)

Need for structure and routine

Children need safety to recover. Structure and routine can offer safety after a crime
happens (Alisic 2012). For one thing, crime often has a disruptive effect on the fam-
ily and the daily life of a child. The daily structure and routine often disappears or
308 Ilse Vande Walle

changes. Children are allowed to miss school, can sleep in bed with their parents.
But children want to move forward with their lives. They do not always want to
think about what happened. They need places where they can be themselves, where
they – albeit temporarily – can forget what happened. That is why it is important to
restore structure and routine in a child’s life as soon as possible: normal bedtime,
attending school, sports, hobbies and other leisure activities.
After a crime it is difficult to maintain the same rules and boundaries as before.
It is easy to spoil a child and while, of course, this is not a problem in the imme-
diate aftermath, in the longer run it should be avoided. Structure and boundaries
offer important vehicles for support to children. It is often impossible to imme-
diately erect the same structure as before, because the child may not be able to
concentrate or may have difficulty sleeping. Requirements may be relaxed for a
while and return to normal routines should proceed in gradual stages. This offers
children the space to recover in a safe environment.

The teacher was very nice after it happened. I was also allowed to do more than
other children in the class. Sometimes, when it was difficult for me to concentrate,
I looked outside and that was ok for the teacher, even though we are normally not
allowed to do so. I also didn’t have to do homework. In the beginning that was nice.
But after a while it annoyed me because other children started to give comments on
it. So I said to the teacher I also wanted to do homework, just like the others.
(Girl 10, after the sudden death of her father)

Every day my mum was talking about it. It was very difficult. We never talked
about something else. It drove me mad. It was just too much.
(Girl 11, whose younger sister had been sexually abused)

I try not to treat her differently. Of course, you do that in the beginning. You just
feel guilty the whole time. You can’t think all the time: ‘It’s so difficult for my
child.’ You need boundaries and I also give boundaries. She also has to tidy up
her room and listen. Of course it’s terrible what happened, but life goes on.
(Mother of a 10-year-old girl, victim of sexual abuse)

The worst thing for me was I couldn’t go on with my life. The day after, I wanted
to get out of bed and go back to school, go back to football. But that was not
possible and for me that was the most difficult thing. The moment I could play
football again was a real relief. It’s a way to think about something else. That you
can forget for a moment what happened.
(Boy 16, victim of stabbing)

I play volleyball. There they know what happened, but not how I feel. And
that’s great for me. It’s nice to have a place where life just goes on.
(Girl 17, victim of robbery)
 Child victims of crime 309

Need to focus on positive things

After a crime many children report that, besides all the negative feelings and con-
sequences, there are also positive developments. It is also important to focus on
these positive developments.

When I was younger, I got bullied at school. It was also very hard for me to
enjoy nice things in life. I could be very difficult. What happened to me was
terrible. But I always thought: ‘You want to get me down.’ It took me a lot
of energy, and sometimes it was very hard. But I succeeded in coping with
this. It’s still difficult sometimes, but I learned to enjoy nice things in life. I
have more fun. And think I’m just much stronger now towards the less nice
things in life.
(Girl 15, victim of rape)

Before it happened we, my parents and my sister, didn’t do that much together.
For example, we never had dinner together. First I ate, then my sister, then
my mum and dad. But since it happened we always have dinner together. We
sit together and eat together, and we talk more to each other. It’s just much
cosier now.
(Boy 13, victim of violence)

In the academic literature, the term Post Traumatic Growth (PTG) is used. PTG is
the experience of positive change that occurs as a result of the struggle with highly
challenging life crises (Alisic 2011). The change may take place in three domains
(Salter and Stallard 2004; Tedeschi and Calhoun 2004; Alisic 2011):

• Perception of self: e.g. considering oneself no longer as a victim, but as a

survivor.
• Interpersonal relationships: e.g. becoming closer to relatives and friends.
• Philosophy of life: e.g. a change of life priorities, an appreciation of life generally,
and an appreciation of the smaller things in life, and of spiritual development.

Until recently it was questioned if children experienced PTG. But studies of young
victims of a traffic crash (Salter and Stallard 2004), young survivors of a hurri-
cane and an epidemiological study of primary schoolchildren in the Netherlands
(Alisic 2011) showed that children, like adults, may display PTG after becoming
the victim of a traumatic event. The studies also revealed that PTG can co-exist with
PTSD. PTSD does not prevent children from positive experiences post-event.
Children need positive reinforcement. Giving them compliments for signs of
progress helps them through the often difficult steps that the recovery process
entails. Understanding the challenges in this process and showing approval of
the child’s access in overcoming the obstacles to recovery are important protec-
tive strategies.
310 Ilse Vande Walle

People don’t have to say: ‘Oh, it’s so terrible.’ It’s better that they react in a
positive way. Like saying: ‘Wow, you are doing well, I see an improvement!’
and showing that there are also nice things in life.
(Girl 11, after the sudden death of her father)

Need for awareness of the child’s recovery process

Recovering from the consequences of crime can be a lengthy and gradual process.
Sometimes a child may feel fully recovered at one point and then subsequently
feel worse, for reasons that can be linked or unrelated to the event.
It is important to give children time and space to come to terms with the event
and not to interfere with the natural healing process of a child. Most victims,
including child victims, will recover by themselves, with the help of their own
social network. But, at the same time, it is important to keep a watchful eye on
signals of problems in the healing process. These might signal the development of
PTSD (Sijbrandij 2009).

I thought I was OK. For a long time I didn’t think of the event anymore. But
when I heard he would be released from prison, it started again. The sleepless
nights, the anxiety. I wonder how long it will take now to recover from it.
(Girl 17, victim of robbery)

It’s every time we get back from holiday. Then our 10-year-old daughter has
a very difficult time again. For a week she sleeps very badly, is very anxious,
doesn’t want to do anything on her own anymore. The first time I was very
surprised when I saw it. Now, we are prepared. We know now after every
holiday, there are some difficult days ahead.
(Mother of daughter and son of 8, victims of a robbery)

As mentioned above, the fact that children are still developing means that long-
lasting post-traumatic complaints can have additional consequences on emotional,
cognitive and social levels (Cohen et al. 2006). When symptoms do not decrease
after a few weeks or when symptoms are very severe, it is very important to keep
a close eye on the child.
It is even recommended to screen for PTSD and other possible disorders, in
order to know when to offer appropriate support or even therapy. In recent years,
some self-report instruments have been developed. The most widely used self-
report instruments in research and clinical settings are the Children’s Impact of
Event Instrument, the Child Post Traumatic Stress Reaction Index and the Child
PTSD Symptom Scale (see National Institute for Clinical Excellence 2005). Sev-
eral of these instruments have been translated into different languages. For chil-
dren who are too young to complete the self-report instruments, parent-report
versions of the questionnaires can be used instead. As well as these, there is also the
Paediatric Emotional Distress Scale (PEDS) instrument (see Saylor et al. 1999).
 Child victims of crime 311

The recommended therapies for treatment of PTSD are the Trauma Focused
Cognitive Behaviour Therapy (TF-CBT) and Eye Movement Desensitization and
Reprocessing (EMDR) (e.g. NICE 2005; Cohen et al. 2006). These two therapies
are equally effective and can be used for children and youngsters. When chil-
dren suffer from traumatic grief it is important to provide them with combined
trauma and grief focused treatment so that they will not have long-lasting PTSD
symptoms and can at last move forward in beginning to resolve the typical tasks
of grieving (Cohen et al. 2006). Apart from these main treatments, many others
exist. Many of them are based on trauma focused cognitive behaviour therapy, and
apart from the children, the parents will also be involved. Research suggests that
in therapy focus has to lie on what happened, methods the child can use to handle
stress reactions and support of the parents (Alisic 2012).

Need to talk to someone supportive

Even when children recover fully from crime, they mention that talking to some-
one supportive is very important. Of the young people who answered the ques-
tionnaires for the ‘Hoodie or Goodie?’ report, 70 per cent thought one-to-one sup-
port with a trained adult would be helpful to them (Owen and Sweeting 2007).
For child victims it is important to talk to someone who is impartial and who has a
non-authoritarian approach; who can give practical advice and information based
on the needs of the child; who does not pressure the child but allows them to fol-
low their own tempo to cope with what happened; who discusses with them what
will be told to their parents; and who can refer to other support if necessary. The
children and youngsters we interviewed ourselves also focused on the importance
of ‘their’ Victim Support worker.

When I went to Victim Support, that was really my hour. An hour for myself,
where I could talk about the things that were difficult for me with someone
who really understood me.
(Girl 10, victim of sexual abuse)

Need for assistance in navigating the criminal justice procedure

The criminal justice process following victimization involves parents to a larger
degree than children. But even then, children want to know what is happening and
want to be involved. They want to know what the police will do after they have
heard them. They have questions about the offender. They want to know whether
they will have to go to court and what consequences this can have. For both par-
ents and children, this is a new world, one for which they cannot rely on prior
experience. Information and support are very important to familiarize them with
the criminal justice process. Children have to know what their rights are and they
need support, from the moment they go to the police until even after the trial.
312 Ilse Vande Walle

Owen and Sweeting (2007) show that a positive attitude towards the police
decreases the chances of offending after victimization. Adequate support from the
police aids children’s recovery. It offers them trust in the police, the justice system
and in themselves. Unfortunately the first experience with the police is not always
positive. This causes increased feelings of guilt, self-blame and an increased dis-
trust towards the whole justice system. Often children regret reporting the crime.
Our interviews with children and youngsters also revealed the significance of
adequate support from the police.

After a few months I told my mother what happened. She accompanied me to

the police. The policewoman explained to me that what he did was a crime.
She explained it was not my fault. A man of 38 is not allowed to do something
like that with a 14-year-old girl. The night after we went to the police was the
first night I slept well for months.
(Girl 14, victim of rape)

After my mobile was stolen, I went to the police. They said they couldn’t do
that much. When I said it’s possible to trace a mobile via the satellite, they
answered that this is something they would think of if I had been murdered. I
regret so much I went to the police. I felt so stupid. My friend already told me
the police wouldn’t do anything and that I should better buy a knife.
(Boy 13, victim of violent theft)

On the way home from school, suddenly, a man pulled me from my bike. He
was old, I was quicker and could escape. I immediately went to the police
with my mother. But they just didn’t believe me. I said I could describe him
in detail but they were not interested. I have no idea what will happen now.
(Girl 15, victim of sexual assault)

Assistance throughout the criminal justice process is also important. The ques-
tions of children and also their rights in the criminal justice procedure can change.
Someone has to be there to keep an eye on this. An example of a programme which
intends to achieve these goals is the Case Manager Project of Victim Support the
Netherlands (Van Wijk et al. 2012). Key notions involve maintaining contact with
victims of severe crimes and relatives of murder over a very long period, if possible
by the same person, to inform them of any developments in the criminal process.

When I was 7, I read in the newspaper my father was murdered. My mother

told me it was true but that was the last and only time we talked about what
happened. This is now 10 years ago. After that we never talked about it any
more. For a long time I didn’t think of it. But since about a year ago I really
want to know. A few months ago I looked up on the internet some information
about the case. I found something and I also found the names of the persons
who murdered my father. I know they are out of prison, I looked up and found
 Child victims of crime 313

their addresses. I thought of paying them a visit and asking them what hap-
pened, as my mum will never tell.
(Boy 17, whose father was murdered)

Importance of support from parents and other

important caregivers
Long-term support from the direct environment of the child often plays a very
important role after children have been victims of crime. This may be the most
important factor in the recovery of a child (Alisic 2011). When children are well
supported by their parents and other significant figures the chance decreases that
they develop long-lasting PTSD symptoms. In addition, research reveals that suf-
ficient support from the direct environment decreases the risk of offending behav-
iour on the part of victims (Owen and Sweeting 2007).

Importance of support from the parents

The reaction of the child’s parents shortly after the event is a key factor. The
extent to which the parents are able to support their child is a main determinant.
The crime not only has an impact on the child, but also on other members of the
family, both parents and siblings.
Parents’ own problems may negatively impact their ability to offer support.
This applies to pre-existing problems (relationship distress, financial difficulties)
as well as the impact of the crime itself, particularly when they have developed
severe traumatic stress symptoms as a consequence. And, even in cases where the
parents did not directly experience the event, they may still feel powerless and
anxious and can, as a result, suffer similar symptoms of traumatic stress as their
child (e.g. Eland et al. 2000).
Young children are strongly affected by the reactions of their parents. When
the parents cope well, young children usually do so as well. But if the parents
are severely affected, young children are likely to follow this trajectory too.
Scheeringa and Zeanah (2001) developed a model for ‘Relational PTSD’. They
describe three different types of parental responses which influence children’s
stress symptoms:

• The withdrawn/unresponsive/unavailable parent: Parents can be so involved

with coping with their own trauma and reactions that this prevents them from
attending to their children’s needs;
• The overprotective/constricting parent: Parents want to protect their children.
In many cases after a traumatic event, when parents have stress reactions
themselves, they may also become over-protective, wanting to shield their
offspring from the horrors they are experiencing themselves;
• The frightening/endangering/re-enacting parent: Parents may repetitively
pressure the child to reiterate the details of the event: this might be due to
314 Ilse Vande Walle

their own anxiety and need to know the facts of what happened, or because
they believe that is to the benefit of the children to speak and emote about
their experiences This constant reliving of the traumatic sequence of events
may hamper the child’s recovery.

A clear example of overprotection was visible in our interviews:

A 17-year-old boy, whose father had been murdered 10 years ago, still doesn’t
know what happened. Even now his mother, other relatives and family think
the truth would hurt him, that it’s better to shelter him from the facts.

Not only with young children, but also in the cases of older children and adoles-
cents, a clear link exists between the reactions of the parents and development
of PTSD symptoms in the child. For instance a study of Cambodian children
and parents who were refugees from the Khmer Rouge regime revealed the link
between parents and children’s PTSD. When parents did not meet the criteria for
full-blown PTSD 12.9 per cent of their adolescent children did; one parent with
PTSD increased this percentage to 21 per cent, while both parents with PTSD
meant that 41.2 per cent of adolescent children had PTSD (Sack et al. 1995).
Moreover, research in the Netherlands found that responsive parenting after
trauma was a central element in the recovery of children. Key issues in this regard
are parents’ attempts to follow their child’s own pace of recovery while providing
structure and guidance when necessary, and/or seeking help to do this. In addition,
the parents felt that their capacity to be responsive was influenced by their own
level of distress, in line with the results discussed above (Alisic 2011).
In our interviews with children and youngsters, we asked them who their most
important supporting figure was. In almost all cases they answered ‘my parents’.
Significantly, the parents of adolescents we interviewed often did not recognize their
importance for their children. The reason for this discrepancy may be that young-
sters find their parents very important but that this does not imply that it translates
into a need to talk to them extensively about the youngster’s experience. Taking an
example from adolescence, a girl of fifteen, a victim of rape, says:

My parents support me the most. My mother is just there. She does not ask
anything. My father protects me and arranges a lot of practical things. I like it
more if they do not ask me about the event. Why? I don’t know. I think I just
don’t want to burden them with it. I only talk with my friends. Yes, they may
ask how I am. That’s not a problem.

The mother of the same girl says:

I don’t think I support my daughter well. I do not think I am very important to her
in the coping process. To begin with I asked how she was, but she never answered.
Now I don’t ask anymore. I think her friends are most important for her.
 Child victims of crime 315

Importance of school
The interviewed children report that besides their parents, teachers and other repre-
sentatives of schools are also important in helping them cope with their experience.
School offers structure and routine to children. And after a crime, children will often
rely on their teacher, tell the teacher their story and are often very happy that in turn
they are given space in school to cope with what happened. Teachers are also often
the first to notice the child’s problems.

The teacher was the first one, apart from the people in my family, to whom I
told what happened. She thought it was very brave I told it to her. She even
said at the parents evening that it was very brave that I told her everything,
including the things I found most difficult.
(Girl 11, whose little sister has been sexually abused)

It was great from the school, they told me I didn’t have to do my exams. If I
could have done them, of course I would have finished them, but it was just
impossible. I couldn’t concentrate. And also going home after an exam would
have been too difficult, because that was the moment of the burglary.
(Girl 17, victim of a violent burglary)

Supporting child victims is not always easy for teachers. A lot of teachers strug-
gle with this issue. Teachers have to strike a balance between the needs of the
child who has been the victim of a crime or another traumatic event, the needs of
other children in the class and their own needs, including their needs to acquire
skills and knowledge to cope with a child after such an event (Alisic 2011). They
often question where their role ends and where the role of a social worker and a
psychologist starts. When schools and teachers explicitly consider post-trauma
support (e.g. signalling serious coping problems and informing children about
available mental health care facilities) to be part of their duty, this probably posi-
tively influences a child’s well-being.

Importance of friends and other peers

In general, peers are very important for children and youngsters and this is partic-
ularly true following criminal victimization. The way in which peers feature in a
child’s life varies with age. Young children have an egocentric view of friendships.
Friends are there to play with or have fun with. When children are involved in a
crime or another traumatic event, they will often involve their friends in replaying
the event. For older children and adolescents, friendships are more mutual rela-
tionships and are based on trust. Youngsters look to each other for the recognition
and support that is so important for them (Crone 2008). When youngsters are con-
fronted with a crime or a sudden death, they will talk with each other more than
with their parents. But sometimes there can be problems. Sometimes youngsters
316 Ilse Vande Walle

are disappointed in the reactions of friends as they may be totally different to what
they expected. This can make them feel misunderstood and lonely. That is why it
can be important for youngsters to talk to peers who have had similar experiences.
Friends may also exert a negative influence on youngsters (Owen and Sweeting
2007).

I tell most to my friends. I also have a diary. Only my friends can read it.
(Girl 15, victim of rape)

I know I have a very hard time. But I don’t need help. My friends help me.
And that’s enough for me.
(Boy 17, after his father was killed)

My friend told me going to the police would not make any difference. He
advised me to buy a knife. That this would be better.
(Boy 13, victim of a robbery)

I know my friends are there for me, but they don’t really understand me. In
the beginning I could tell them a lot and they really listened. But now they go
on with their lives and with their own things. Which are not so interesting for
me any more, since what happened. Yes, I try to be with them and involved
with the things they are doing. But it’s just not my thing any more. Sometimes
I’m very, very lonely. That’s why I think it’s really good to talk and mail with
someone who has been through the same as me. That person would really
understand.
(Girl 14, victim of rape)

Importance of cuddly toys and animals

What also stood out in the interviews we conducted with children and young-
sters was the importance of pets for adolescents. Pets are often one of the
most important support figures. On the one hand they offer structure: they
need to be cared for, they need to be taken for a walk, etc. And, on the other
hand, adolescents have the feeling they are always available to listen and
offer support.

She listens, that’s what I think. Of course I’m not sure of it. When I cry she
is very quiet and normally she’s a very active dog, like her mistress I think.
If I say: ‘Come on, it’s not the moment’, then she looks at me, with her sad
eyes. She makes me so happy. I don’t know, if I didn’t have her, how I would
be now, if I still would be here. We go out for a walk every day. Next to our
house is a grass field. There she can run, I really enjoy that. I run with her and
play with her. That really helped me. The man who did this to me knows my
dog is very important to me. I’m very afraid that when he gets out of prison
 Child victims of crime 317

he will do something to her. That’s why I go to the dog training school with
her; to teach her that she can’t take anything from a stranger.
(Girl 15, victim of rape)

I like it most to be with my animals. I have rabbits, a cat and a dog. When I
didn’t feel well, I just wanted to be with them. Because animals are so impor-
tant, I’m studying now to become an animal keeper.
(Girl 17, victim of a robbery)

Young children, on the other hand focus on the importance of cuddly toys (see
also Alisic 2011).

If another child should also have thieves with guns in his house, the day after
I would lend him all my cuddly toys for the night. I know they would make
him feel better!
(Boy 6, victim of burglary)

How should adults support children?

For a lot of adults, being confronted with child victims is a very difficult issue.
Children’s reactions vary widely and so do their needs. Just like a lot of child-
victims are resilient, a lot of adults are good support givers. Basing support on the
needs of a child is essential (Alisic 2011). On the basis of our research we find the
following three key principles: children need to be taken seriously; children do not
what to be pressured; and children need encouragement.

Children need to be taken seriously

Adults have an inclination to want to protect children and youngsters from what
happened. But when children become a victim of a crime, their direct or indirect
involvement means that this is not possible, despite what adults may wish. Chil-
dren also want to be involved. They want to know what is happening and to be
consulted in matters that have direct bearing on their situation. They have a real
earnest need for information and consultation.
Information must be given at the level appropriate to the child and in a lan-
guage the child understands. The first thing is to give the child basic information.
It is not necessary to give the child too many details. After that, it is important to
answer the child’s questions, which can sometimes be very confronting and it is
not always easy for adults to give clear answers or explanations to a child.

I read in the newspaper my father was murdered. Everyone told me it was an

accident. I’m very angry about this.
(Boy 7, after his father was killed)
318 Ilse Vande Walle

Apart from information about the facts, psycho-education – information and edu-
cation about possible reactions and experiences that the child may have as a con-
sequence of their victimization (see de Eland et al. 2000) – can be important, both
for the child and for the adult. But it is very important that psycho-education is
given upon request, when a need to know more about psychological consequences
is apparent and that it is offered with specific reference to the person’s questions.
General psycho-education is not beneficial and may even increase the victim’s
fear and anxiety.

I thought everything was ok with my daughter, until someone told me what

the problems of a victim can be. From that moment on, I have prepared
myself, as I know the problems still have to come.
(Mother of a 10 year old child, victim of a robbery)

Children need to be consulted if steps are taken that might impact them. They are
the best source to ascertain their needs, and are able to express these.

The headmaster told the teachers what happened. But every time he came to
me to let me know to whom he was going to tell and he asked me first if it
was OK for me.
(Girl 17, victim of a robbery)

I didn’t go to court myself. My parents went, also a friend and my brother and
sister have been. They gave me the choice. I didn’t have the need to go and
see the offenders. I would have found that too difficult
(Boy 16, victim of stabbing)

Children do not want to be pressured

It’s important to follow the child’s pace of recovery. Sometimes children are focused
on what happened and want to discuss it, but at other times they prefer to attend to
other things in their lives and do not want to think or talk about the event.

It’s nice that my parents ask me how I feel. But I prefer they don’t ask it too
often. When they ask it too much, it’s not nice any more. In the beginning it
was sometimes too often. But then I just didn’t answer any more and I think
they noticed I didn’t want to talk about it. Sometimes you just need peace.
(Boy 13, victim of a robbery)

Children need encouragement

After a crime, children often become hesitant. Activities that they performed
without any doubt or anxiety before the crime become large obstacles which
they find themselves unable to overcome. Adults can play a significant role
 Child victims of crime 319

in helping children overcome their new anxieties. Encouraging children to

rediscover their confidence in their own abilities will often require a step-by-
step gradual approach.9

Entering our house for the first time was most difficult. My mother supported
me very well. She really pushed me inside the house. If she hadn’t done that
I think I would have stayed in front of the door for a few hours, hesitating to
go in. Luckily my mother pushed me. It’s good to get a boost but by someone
you love and trust.
(Girl 17, victim of a violent burglary)

Final remarks
Much has changed for the better for young victims of crime in recent years. There
can be no doubt about this. But even so, they are still a vulnerable group. This
vulnerability concerns first the added impact of victimization for child victims, in
the sense of its possible interference with the child’s development. In this chapter
we have highlighted neuropsychological consequences, but also noted that the
insufficient attention to child victims’ recovery will in turn lead to them to become
offenders themselves.
The vulnerability of child victims also expresses itself in their invisibility, even
though their risk of victimization is (much) larger than that of adults. They rarely
report victimization to the authorities and often the adult world will remain oblivi-
ous of the crimes that befall children and adolescents.
Finally both invisible and visible child victims are often misunderstood. One
of the reasons for their decreased visibility is the fact that their reactions can be
attributed to other causes, but even if it is apparent that a child has suffered crime,
more care is needed to understand their experiences. Parents and other caregivers
are prone to apply incorrect heuristics to the situation of victims of crime, some-
times as a consequence of their own anxiety and trauma. An important avenue
therefore for improving the plight of child victims of crimes is to attempt to gain
a better understanding of what they are going through.

Notes
1 ‘Children’ here includes young children, primary school children and adolescents.
2 See Directive 2012/29/EU of the European Parliament and the Council of 25 October
2012, establishing minimum standards on the rights, protection and support of victims
of crime, article 22, section 4 (see also Wheldon and Ezendam, this volume).
3 See www.brottsoffermyndigheten.se/Filer/B%C3%B6cker/Child%20victims%20
in%20the%20Union,%20CURE.pdf [Accessed 15 July 2013].
4 See www.apav.pt/musas/musas2.html [Accessed 15 July 2013].
5 Carrion V. G., www.1–800-therapist.com/news-article/mental-health-issues-common-
victims-childhood-trauma [Accessed 15 July 2013].
6 HM Government, 2008.Youth Crime action plan. Good Practice for Supporting Young
Victims of Crime.
320 Ilse Vande Walle

7 The Crime Victim Compensation and Support Authority Sweden, 2010. Child Vic-
tims in the Union-Rights and Empowerment (CURE). A Report of the CURE project
2009–2010.
8 HM Government, 2008 Youth Crime action plan. Good Practice for Supporting Young
Victims of Crime.
9 An analogy may be drawn here to the graduated process of most cognitive therapies in
the aftermath of victimization and trauma, e.g. Foa and Rothbaum (1998).

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Chapter 16

ETA terrorism victims’ experience

with restorative encounters in Spain
Gema Varona

Introduction
The text for this chapter draws on my previous work on restorative justice with
respect to terrorist victimization in Spain committed by ETA.1 I intend to extend
the conclusions reached with an eye to translation to other contexts. To this end a
critical victimological approach is adopted (Walklate 1990). In this view victims
are citizens first, something the terrorist attack has denied.2 Their identity is not
shaped fully by their victimization. Professionals working with victims and/or
victims issues should avoid – consciously or unconsciously – ‘colonizing’ their
identity by the victimization or de-victimization process. Victimization and de-
victimization processes cannot be understood solely as a result, but as plural,
complex and multi-dimensional dynamics (Larizgoitia et al. 2009), in which the
factor of time is particularly important. In addition, by considering the interrela-
tion between individual, interpersonal and structural dimensions of vulnerability
and protection, this opens up the possibility to study the fact of unequal distribu-
tion of recovery and restoration elements in society.
I follow Wilkinson and Pickett (2011, p. 15), when they argue that: ‘What holds
them all in place, like the mortar between bricks, and gives each society its par-
ticular character, is the subjective collective beliefs and behaviour of the people
in that society.’ Within that framework I have opted for a qualitative study of
different victimization narratives, case studies and media discourses reflecting
personal, political and social interests or concerns. Sources used in previous stud-
ies will be reinterpreted.3
The chapter is structured as follows. I will first introduce the history of restora-
tive encounters with former ETA-terrorists in Spain. Then I will consider the main
victims’ associations’ criticism of these encounters, which has also been voiced
by many offenders. I will try to understand this criticism in relation to the concep-
tions of justice of these stakeholders and how this is in turn related to the wider
context. Finally, before drawing conclusions, I will systematize relevant points
learnt from the social, political and scientific debate in order to consider restora-
tive factors in processes of de-victimization, including resilience, recovery and
future reconciliation.
 ETA terrorism victims in Spain 323

A brief history of restorative encounters with former

ETA Terrorists
On 20 October 2011, after fifty years of activity, the terrorist organization ETA
declared a definitive cease-fire demanding a ‘fair and democratic solution to the
decades-old conflict’.4 According to the Victims of Terrorism Foundation, ETA
has killed 829 people, including military staff, policemen, politicians, journalists,
professors, judges, prosecutors, businessmen and ordinary people, some of them
children.5 Analysis of ETA activity by year (Table 16.1a) and by status, gender and
location of victimization (Table 16.1b) is shown below.
ETA was founded at the end of Franco’s dictatorship. Most fatalities and casual-
ties occurred in the subsequent democratic period, when the Basque Country gained
considerable autonomy within Spain and legitimate expectations of independence
through peaceful means (de la Cuesta and Varona 2012).6 ETA has caused much
physical and emotional harm over a protracted period of time, inside and outside
the Basque Country. More research is needed to evaluate the direct, indirect and dif-
fuse victimization that took place. This should include the impact and interactions
of personal, material and political harms experienced by different generations in

Table 16.1 (a) Numbers of ETA fatal victims over time (total 829 fatalities)

Year Fatalities Year Fatalities Year Fatalities Year Fatalities

1968 2 1979 76 1990 25 2001 15

1969 1 1980 92 1991 46 2002 5

1970 0 1981 30 1992 26 2003 3

1971 0 1982 37 1993 14 2004 0

1972 1 1983 32 1994 12 2005 0

1973 6 1984 32 1995 15 2006 2

1974 19 1985 37 1996 5 2007 2

1975 16 1986 43 1997 13 2008 4

1976 17 1987 52 1998 6 2009 3

1977 10 1988 21 1999 0 2010 1

1978 66 1989 19 2000 23

Source: Interior Ministry and Terrorism Victims’ Foundation

324 Gema Varona

Table 16.1 (b) ETA fatalities by status, gender and location of victimizationa

Status No.
Civilians (including 4 persons belonging to the 343 (including 23 minors)
penitentiary staff, 2 prosecutors, 1 judge, 4 magistrates
and 3 journalists)

Members of security forces 486

of whom:

Civil Guard 203

National Police 146

Spanish Army 98

Local Police 24

Basque Autonomous Police 13

Catalonian Autonomous Police 1

French National Gendarmerie 1

TOTAL: 829 people killed (59 were women; 551 were killed in the Basque Country)

Source: Interior Ministry, www.interior.gob.es/prensa-3/balances-e-informes-21/ultimas-victimas-

mortales-de-eta-cuadros-estadisticos-630?locale=es.

Note
a For a study with more variables, see Alonso et al. (2010, pp. 1210–1232). Cf. the suffering
map and the memory map in the official web of the Victims of Terrorism Office of the Basque
Government (www.interior.ejgv.euskadi.net/o11aWar/o11aIndex3.jsp?pageId=-617760275&ID_
NAVEGACION=0). See also the special report on public policies towards victims of terrorism
by the Basque Ombudsman (www.ararteko.net/RecursosWeb/DOCUMENTOS/1/1_1684_3.pdf).

diverse ways and different contexts. A particular characteristic of ETA actions was
the constant atmosphere of threat and coercion.7
According to data of the Spanish Ministry of the Interior, at the end of 2012
there were only about fifty active ETA terrorists, but hundreds more have avoided
capture, arrest and prosecution. Around 500 perpetrators of ETA crimes are cur-
rently incarcerated in Spanish prisons and one hundred in French prisons.8 To
large segments of the Basque population, they are considered political prisoners –
as victims themselves, of the Spanish and French states, of police abuse of power
and of counter-terrorism.
 ETA terrorism victims in Spain 325

Restorative encounters between former ETA terrorists and their victims started
in 2011. The initiative came from repentant ex-terrorists of the so called via Nan-
clares.9 In a literature workshop within prison, they expressed the wish to meet
their direct or indirect victims to ask for forgiveness.10 The project was based on
cooperation between Penitentiary Institutions of the Spanish interior ministry and
the Office for Terrorism Victims of the Basque government. Both agencies were
controlled by the socialist party at that time. In November 2011, the right wing
Partido Popular won the general election and the restorative project was put on
hold for several months.
On 30 April 2012, the interior ministry presented its own rehabilitation pro-
gramme for prisoners sentenced for terrorism or organized crime. This programme
dedicates four paragraphs to so-called encounters to repair victims.11 The pro-
gramme deals not only with restorative encounters, but also with broader issues.
It tries to provide a match between the location of the offenders’ prison and their
former place of residence.12 In order to do so the offender must publicly reject
violence and severe connections to ETA. According to the current programme,
the aim of ‘encounters with victims to repair victims’ is to facilitate a procedure in
which victims – who wish to – may offer forgiveness to those convicted persons
who are willing to ask for it.13 A request for forgiveness from the victims – which
does not imply that they will be forgiven – is required from inmates sentenced
for terrorism or organized crime in order for them to be placed in so-called ‘third
degree’ prisons, as the last stage of prison with a more open regime (art. 72. 6 of
the Organic General Penitentiary Act) and in order to obtain a favourable final
prognosis report before conditional release (art. 90 of the Penal Code). Thus,
meetings are designed to satisfy this legal requirement.
Victims – those directly harmed or their relatives – should request the encoun-
ter. Correspondingly, prisoners asking for forgiveness should be the direct offend-
ers or co-offenders of the crime in question. The brief text of the interior ministry
programme also states that encounters should be sufficiently prepared to avoid
causing secondary victimization. In addition, victimological reparation should
be considered an essential part of the offender’s rehabilitation. It is emphasized
that, among victimization reparation mechanisms, those addressing material and
moral harms are important. Prison treatment team members should evaluate par-
ticipants’ progress and document observations and conclusions for inclusion in
the offender’s file.
Due to a lack of consensus on policy towards terrorism, the encounters were
conducted discreetly. No official evaluation has been made public, although the
promoters collaborated with several penal law professors interested in restorative
justice. By September 2011, organizers decided to inform the public of the exist-
ence of these encounters. Written and video interviews with some participating
victims, offenders and coordinators were provided to media outlets.14
By this time, eleven encounters had taken place.15 All encounters were con-
ducted face to face, except one held by mail. The purpose of the encounters was
to aid victims’ recovery and victimizers’ rehabilitation through the possibilities of
326 Gema Varona

forgiveness in a wide sense.16 Often victims were relatives of a homicide victim

and informed the offenders they could not forgive them in strict terms: the one
who could do so had passed away. Nevertheless, most people participating in
these encounters were positive about the offenders’ expressions of remorse and
their will to try to alleviate an irreparable harm.
After the publication of the interior ministry programme in April 2012, the
occurrence of two additional encounters has been made public. However, these
encounters were denounced by the original promoters as lacking key restorative
features. They criticized the interior ministry for giving victims the initiative,
fearing secondary victimization would result if offenders refused to participate.
In addition they were wary that encounters would proceed without guaranteeing
victims’ restorative attitude and without using trained facilitators.17
Most victims’ associations expressed their opposition to the encounters and to
the plan of the ministry of the interior as a whole. Even though organizers made it
clear that no penitentiary benefits followed encounters, many victims felt the plan
amounted to a kind of ‘soft’ justice, and even impunity. Moreover, they stated that
talking about forgiveness was an additional burden, one which should have been
the prerogative of the deceased in any case.
Criticism has come from ETA prisoners as well, in line with the abertzale left.18
They believe that only amnesties and general pardons, as mechanisms of transi-
tional justice, will offer solutions to the political conflict while these individual
solutions based on forgiveness instead amount to humiliation. In similar vein is
the petition to recast the Basque Parliament commission on ‘peace and living
together’ as a ‘truth commission’.19

Victims’ anxiety following the end of ETA

Victims’ associations have played a key role in the history of ETA victimization.
Mostly created by widows, the associations defended victims when no one else
did. This pioneering and illuminating role regarding the lack of a social and polit-
ical answers to grave victimization merits enduring recognition. However, the
associations who are demanding a public role must also be prepared for the pos-
sibility of public criticism. Moreover the associations do not always sufficiently
recognize two basic facts: the plurality of victims20 and the multitude of victims
who do not belong to any association or victims’ group at all.
For this very reason it is difficult to explore victims’ reactions to restorative
encounters. On the basis of previous research, the hypothesis in this section is
that many victims fear that restorative encounters with former ETA-terrorists will
usher in impunity.21 Many associations have already expressed their fear of both
juridical and historical impunity (see Guiding Principles for a model on the End of
the ETA without Impunity, 2010). Another hypothesis is that perceptions of both
forms of impunity are very much related, while feelings of historical impunity
have been underestimated in the process of recovery and restoration.
 ETA terrorism victims in Spain 327

Diverse promises of material and symbolic justice to concerned stakeholders

should be considered. By stakeholders I mean direct, indirect, vicarious, diffuse
and hidden victims; offenders; legal professions22; political parties; media; and
society. In particular, I will explore victims’ fears and responses to them in three
formal or theoretical systems or models: the current Spanish criminal justice sys-
tem; the transitional justice model; and the so-called comprehensive law model.23
This last model embraces elements of procedural justice, therapeutic jurisprudence
and restorative justice.24 Finally, proposals for hybrid models will be discussed.

Current Spanish legal system

The most relevant document in this field, produced by the main victims’ associa-
tions, is the Guiding Principles for a Model of the End of ETA without Impunity
(December 2010). It relies on the promises of a strict understanding of the formal
rule of law, the assumption of the victory of the legitimate side to judge unjustifi-
able crimes and the efficacy of the judicial system to do so while also responding
to victims’ needs.
Most legal professionals and the public understand impunity as the lack of pun-
ishment. The origin and expression of victims’ fear of impunity can be traced to
the secondary victimization and social indifference they suffered for many years.
There is also the experience of previous amnesties and pardons to ETA members
in the 1970s and 1980s. Victims’ fears make them suspicious of judges and the
penitentiary administration regarding any change in the length of incarceration
due to different interpretations of the law. Most public opinion within and outside
the Basque Country reveals support for prisoners’ true rehabilitation, but not for
amnesties.25
The fact is that penalties for the most serious crimes have increased since 2003.
However, the most valuable institutional responses might be found in the spe-
cific and integral protection and assistance legislation for terrorism victims at the
regional and state levels.26

Transitional justice model

Some scholars, nationalist politicians and the abertzale left, support a transitional
justice model.27 As Williams and Nagy (2012, pp. 2–3) explain, the term tran-
sitional justice appears in the last decades of the twentieth century ‘to denote a
distinct field of political-legal practice and of scholarly inquiry’. The transitional
justice toolkit comprises the removal and disqualification of public officials, inter-
national and/or domestic criminal trials, amnesties, pardons, truth commissions
and reparations or compensation.28
Academic work on transitional justice reveals the complexity of the matter
within and outside the Basque Country.29 On the one hand transitional justice is
just a new academic and activist name to describe periods of historical change in
the aftermath of gross violations of human rights. On the other hand it includes the
328 Gema Varona

study of the different justice mechanisms to be applied in those historical periods

of change.
Part of the theoretical and empirical work on transitional justice seeks to estab-
lish criteria to evaluate those mechanisms in policy, law and practice. The prob-
lem is that criteria for such an evaluation are not always grounded in international
human rights, in their limitations and interdependence, but in practical or political
concerns regarding the balance of justice with peace. What some experts consider
adequate in some contexts varies from others. This is probably due to particulari-
ties of the context itself, but also to the different criteria of evaluation and the dif-
ferent definitions of conflict, peace, justice and the relation of these concepts to
the democratic and humane rule of law. By humane I mean the consciousness that
any transitional justice decision affects concrete human beings who have suffered
a severe injustice. This is how the humanity principle should work in theory, even
recognizing its complex and political dimensions in practice.30
In the case of today’s Basque Country, transitional justice amounts to prom-
ises of a cessation of hostilities, but at the cost of lenient punishment for offend-
ers.31 Although each transitional context is unique, the situation in the Basque
Country comprises neither a transition from an authoritarian regime to democracy
nor a civil war/large scale conflict. It is true that transitional justice mechanisms
have been applied to ‘post-conflict situations’, although the latter concept is quite
ambiguous. It is also true that, since the South Africa Truth and Reconciliation
Commission, restorative approaches in relation to a more victim-centred transi-
tional justice have been explored.32
For the abertzale left, some political parties and legal professions in the
Basque Country,33 the transition context applies because both terrorist acts and
abuses of power took place. Regarding extra limitations of state power, the
abertzale left mentions criminal procedural law provisions allowing incommu-
nicado detention linked to allegations of torture;34 penal and penitentiary provi-
sions hardening prison sentences; penitentiary jurisprudence to lengthen prison
sentences;35 and penitentiary policy on dispersion of prisoners. Moreover they
recall the Act on Political Parties36 and legal provisions that outlawed several
newspapers on suspicion of collaboration in the financing of terrorism. In their
interpretation of these policies and legislation, this means continuous and sys-
tematic violations of human rights by the Spanish state – extended to the French
state as well.
The Basque parliament recently commissioned different studies of abuses of
power, although this did not amount to the acknowledgement of the existence
of two antagonistic violent sections in society. The Office for Terrorism Victims
(2008) published a report on the violence of ‘uncontrolled’ groups, the extreme
right and the Group of Anti-Terrorist Liberation (GAL).37 Between 1975 and 1989,
according to this report, 66 fatalities and 63 casualties and one kidnapping were
the result of 74 terrorist acts committed by GAL, Spanish Basque Battalion, Triple
A, and Anti-ETA Groups (GAE). The victims have been increasingly included
into the Spanish legislation on terrorism victims’ compensation schemes.38
 ETA terrorism victims in Spain 329

There are about twenty cases with unknown offenders and many cases have not
resulted in a sentence. Laura Martín, widow of a man murdered by GAL, laments
that she did not have access to judicial truth through a sentence. She would have
been satisfied with an institutional acknowledgement in the form of a public dec-
laration recognizing the crimes committed by GAL.39 She stated:

We, victims of GAL, cannot claim our condition of innocent victims if we

are not capable of condemning all terrorist attacks committed by ETA (...)
Some people want to use me to justify ETA crimes, while others justify my
husband’s death as a reaction to ETA.
(El Diario Vasco 25 July 1997)

In 2010, the Office of Human Rights of the Basque government published a report
on victims of human rights violations and unjust suffering in a context of politi-
cal motivation.40 The first result of this report was the enactment of a Decree on
reparation for victimization suffered between 1960 and 1978.41 This has provoked
criticism by several political parties and victims’ associations that this amounts to
justifying terrorism and reducing the guilt of the perpetrators. The ruling socialist
party, supported by other political groups, explained that many of those victims
were not related to ETA in any way.
Transitional justice appeals to the abertzale left because of the so-called inter-
nationalization of conflict in the sense of macro and neutral peace-building
negotiations where amnesties might be possible. Juridical and historical impu-
nity come together in what is perceived by victims to be an affront: the abertzale
left’s demand of global and immediate responses for ETA prisoners; its resistance
in acknowledging its accountability; and the pretence to look to the future and
imposing a story of compensation of faults and guilt, even before an ETA declara-
tion of disarmament and dissolution.
As the sister of a murdered man stated:

Victimizers aspire to impunity, to manipulate the truth, to tell another story,

so that they don’t have to condemn what happened. Then, is it not too soon
to talk about reconciliation? (...) There are over-sweet discourses, but I want
to have a relationship with my victimizer neither of co-responsibility nor of
bitterness. I don’t see offenders with a right attitude. On the contrary they see
themselves as victims and heroes... They killed my brother... They killed a lot
of my friends, one after another.
(Pagazartundúa 2011)

Part of the problem with transitional mechanisms such as amnesties and par-
dons is the Spanish past experience. They were already granted for ETA terror-
ists during the 1970s and 1980s. Beyond the legality debate on current possibili-
ties of amnesties in Spain, previous legislation on individual pardons for any kind
of crime should be rethought to include a victim participation approach so that a
330 Gema Varona

more humane and inclusive rule of law respecting human rights is guaranteed.42
It does not appear coherent to appeal to international human rights in order to
evaluate past wrongs and not to evaluate (transitional, restorative or ordinary) jus-
tice mechanisms themselves.

Comprehensive law models

In a procedural justice model, victims’ justice needs are not only a function of the
process results, but also of the process itself. This includes listening to victims;
having regard for their opinion; showing them respect and support; and grant-
ing them trust in the competence of those controlling the process.43 Perceptions
of procedural justice have a positive impact on victims’ recovery, healing and
empowerment (Strang et al. 2008).
More and more in Spain, with specific central and regional legislation and offices
for victims of terrorism, aspects of procedural justice are increasingly regarded by the
penal system. There are still some aspects relevant to victims that are not considered at
all by that system, although they would not imply a limitation of offenders’ fundamen-
tal rights. As an example, consider victims’ interest in facing victimizers. In 2011, after
giving her testimony during trial, one homicide widow turned back and looked at the
defendant. She was ordered by the judge to leave the courtroom. Later, she declared
that it was very important for her to be able to do it. That gesture relieved her.44
Procedural justice is closely connected to therapeutic jurisprudence. According
to Zawisza (2012, p. 5), therapeutic jurisprudence ‘is an approach to the law and
legal systems that focuses on the law’s impact on the emotional life’ and psycho-
logical and physical well-being. In this field, it has been applied to globalized
emotional effects of terrorism.45
In a therapeutic jurisprudence model, forgiveness and other healing processes
should be questioned. According to a facilitator of the first restorative encounters
with ETA ex-terrorists: ‘Participating victims are satisfied with sincere repentance.
Forgiveness helps them to achieve closure in their mourning process… Victims
and victimizers win, but victims will receive the primary emotional benefit.’46
However, as will be discussed in next section, demands of forgiveness might
entail secondary victimization.
Restorative justice promises due regard to victims’ rights and needs as related
to those of offenders and to community support and interests. In this sense, harms
and perhaps relationships can be restored.47 It might open new roles for victims’
reparation in innovative terms; for offenders’ active responsibility; and for com-
munity concerns and solidarity.
In the case of restorative justice, victims fear privatization and therapeutization
of justice. They are afraid that the public dimension of terrorist’s crimes and the
rule of law will be neglected. In their opinion, de-legitimizing terrorism should be
a priority.48 In a restorative justice model, multi-dimensionality of harms and the
condition of irreparability should be considered.
 ETA terrorism victims in Spain 331

For victims participating in a restorative encounter with a former ETA prisoner,

just recognizing the harm done does not amount to much because the harm is an
obvious fact, even though former terrorists should acknowledge this. One such
victim, Professor Iñaki García Arrizabalaga 49 said:

Forgiveness should not be understood as humiliating, because it is just the

contrary, a revolutionary thing… to see the human suffering they caused
and to recognize that violence is not the way… I don’t criticize his political
options, but the means he used.

The victimizer he met told him that he knew he caused irreparable harms and
wished he was his direct victim, but that, in any case, he wanted to request for-
giveness for his membership of ETA:

It really struck me. It was the first time a terrorist asked me for forgiveness…
I made sure before that he would not do this expecting penitentiary benefits.
I didn’t want to be a useful fool… But he needed to do it from a human per-
spective.

He thinks that when victimizers argue that the terrorist’s environment annuls their
individual will, they are exposed:

They have a pending reflection… I am not saying that their explanations are
not sincere, but they are too easy. They should think why they couldn’t rebel
against it. If we talk about environments, we just talk of diffuse responsi-
bilities for which no one seems accountable. It is more difficult to say ‘I am
responsible for entering this world; it is a personal decision for which I am
accountable.’ Of course, from a human point of view, it is understandable to
try to derive part of that responsibility.

Finally he thinks about the person he found in that former terrorist:

It might hurt some people to hear me say that it is good to discover the human
side of a terrorist, but I think so… I could not forgive him because he killed other
people, not my father, but I think he felt better after talking to me and so did I.

Some victims were suspicious of the encounters due to their emphasis on

secrecy and the fact that offenders and penitentiary staff initiated them. In
addition the aims of the programme were not clear to all victims. In the case
of one victim, she was informed by the media that her sister’s killer wanted
to meet her.50
Victims’ testimonies also provided evidence of contradictory perceptions of
restorative justice.51 Participating victims underlined that it was a personal deci-
sion, but when they described the encounter they did not maintain this view.
332 Gema Varona

Societal concerns were highlighted, such as contributing to the offender’s reha-

bilitation; living together in the future and even reconciliation as key individual
and community prevention factors.52

Hybrid models adequate to different terrorist contexts

The United Nations Office on Drugs and Crime (2011) has recognized the need
to give terrorism victims a voice within the justice system. This includes indi-
vidualized responses to counteract de-personalization and further development of
principles regarding reparation. Equal treatment for all terrorism victims should
be developed hand in hand with personalized assistance within a criminal justice
response geared to supporting victims.53
In this sense, restorative forums might help manage justice demands where
rational and emotional elements cannot be separated:

Moral feelings should be controlled so that senses are not cheated. But that
control cannot be done sacrificing feelings... Making suffering talk is the con-
dition for all truth, as Adorno stated. Truth is neither impartial nor impassive.
It is not partisan either.54
(Reyes 2011, pp. 25, 300)

Hybrid models considering the rule of law in current criminal justice systems,
together with aspects of transitional justice, procedural justice and therapeutic
jurisprudence and elements of restorative justice, could be useful and satisfying
for some victims.
An example is the so-called Glencree Initiative, where victims of different ter-
rorist acts in the Basque Country convened during several years to discuss the
universality of human suffering, while recognizing the relevance of context (Ini-
ciativa Glencree 2012). This group work was promoted by the Office of Terrorism
Victims and developed by experts on victims’ recovery. We can also consider
the possibility of truth commissions for terrorist crimes without trial or without
sentenced offenders, where the offender was granted amnesty or pardon, and for
hidden victimization (see Figure 16.1).

Research perspectives on restorative justice

For the theoretical purposes of this section, resilience is defined as the mixture
of resistance and flexibility in confronting adversity or victimization. Recovery
refers mainly to victims’ psychological and physical well-being, to go on with
normal life. In this sense, resilience factors might be included within recovery
processes. Restoration is a broader concept: in the forms and dimensions of harm
it recognizes, and in its inclusion of accountability.55 It means bringing together
reparation to victims (by recovery, memory, truth, dignity and justice), offenders’
 ETA terrorism victims in Spain 333

Author
died: 8

Open cases: 18

Without informaon on the responsible person

(48). Public Prosecuon lacks general
documentary informaon on the judicial process
(53)

There has been a sentence where suspects of collaborang have

been condemned (42) or found innocent (11) but not the principal
author(s): 53

Statute of limitaons: 134 (118 of them because more than 20 years have passed since
the provisional dismissal)

Figure 16.1: ETA killings without condemned main offendera

Source: Observatory against Impunity and National Court Prosecution Office, El País 2011, Decem-
ber 27). Available at: www.fundacionvt.org/images/fvt/notasprensa/Informe_de_asesinatos_de_ETA_
sin_resolver.pdf [Accessed 1 September 2012].

Note
a Total number of ETA murdered victims without a condemned main offender: 314.

accountability and rehabilitation, while acknowledging the role that the criminal
justice system plays.
In other works, my colleagues and I have listed some recovery and restorative
factors supporting the process of de-victimization for terrorism in Spain (Varona
et al. 2009).56 Although it is difficult to establish a linear explanation of how these
factors interact for each concerned person, some seem more important than others
in the case of ETA victims. These factors should be evaluated with both victimo-
logical and legal, political and social criteria. A full overview of the factors of the
individual interpersonal and contextual factors is shown in Table 16.2. In different
degrees and depending on each victim, all these factors affect attitudes towards
punitiveness and restorative encounters.
334 Gema Varona

Here I will focus on two crucial aspects for the encounters held in the Basque
Country: the response to indirect and diffuse victimization, and the private and
public meaning of forgiveness and reparation. Both are related to restorative
encounters’ aims and access requirements and limitations.

Indirect and diffuse victimization

There are at least two reasons supporting participation of vicarious or subro-
gated victims and offenders. The first is the nature of terrorism itself, which
uses the attack on the direct victims as means to achieve diffuse or collective
victimization of the society as a whole.57 Moreover, even if offenders belong
to different squads, they receive orders from the same organization. Beyond
the strict conception of criminal liability, they are collectively responsible for
actions committed in the name of ETA. The second reason is that if victims
want to meet with an offender and he declines, access to restorative justice will
be contingent upon one offender’s will. These victims might benefit from an
encounter with other offenders.
On the new requirement by the 2012 interior ministry rehabilitation programme
of meeting direct offenders or co-operators of caused victimization, one of the vic-
tims who participated in the earlier encounters declared: ‘I made him responsible
for the death of my father as he was part of the terrorist organization.’ He found
comfort in the conversation and left satisfied with the experience. He underlined
that it was not about being too soft or vengeful. He had an interest in raising the
offender’s awareness of the real and deep victimization suffered by his family. In
this sense he thought that the experience was hard for the victimizer. This victim
perceived a person who was ‘destroyed, repentant and very sincere. The offender
did not have a clue of what victims have gone through.’ In the case of facing the
directly responsible terrorist, this victim thought it must be ‘more complicated
knowing that that finger pressed the trigger’.58
A former terrorist – incarcerated for twenty years for a car bomb in 1992 which
caused three fatalities and twenty-one casualties – asked to meet the father of
one of the deceased. In the end this was not possible because the father declined.
The prisoner considered this negative answer to the encounter as natural and very
respectful. According to him, after meeting another victim:

I did that and I knew one day I should face it… I did that but I have never
known who the victims were… I remember being very nervous… What struck
me was the lack of hate on the part of the victim I met… But also his strength
to keep going and how they remember everything, every detail… When I was
involved with it, I saw victims as something impersonal, but when you meet
them and they relate their suffering to you, from human being to human being,
that is the reality. There is no greater suffering than that. When you listen to a
victim you ask yourself: ‘What have we done?’ Until I talked face to face to a
victim, I was not fully aware of many things. Of how many people are like that,
Table 16.2 Recovery and restorative factors in the process of de-victimization for
terrorism in Spain

Individual level Interpersonal level Contextual (socioeconomic/

political/institutional) level
• being a direct or indirect • moving to another • end of terrorism
victim (partner parents, neighbourhood or (announcement of
brothers, sisters and oth- town and living in or ceasefire/dissolution);
ers); outside the Basque • political consensus;
• perception of recognition Country after the • delegitimization of ter-
and acknowledgement; attack; rorism in education;
• severity of crime as a • support by partner • guarantees of cessation
subjective dimension; and by different family of terrorist acts;
• perception of juridical and/ members; • public acknowledge-
or historical injustice; • professional support; ment;
• emotional balance and • having a family of their • prisoners’ collaboration
character; own at the moment of with justice;
• having suffered revictimi- the terrorist attack or • material and symbolic
zation and/or secondary later; reparation programmes
victimization; • belonging to a victims’ • public programs on
• religious beliefs or spir- association; memory and history;
ituality; • helping other victims; • the passage of time;
• political ideology; • being helped by other • information and
• trust in institutions; victims; transparency regarding
• education; • participation in social victims’ and victimisers’
• socioeconomic status; and community life; policies;
• occupation. • experiencing forgive- • being fairly treated
ness; having received • main offenders being
material and symbolic brought to trial;
reparation by the • the existence of
offender or being asked institutional processes
for apologies (through of stating truth and
restorative encounters accountability when
or others); trial is not possible;
• memory acts in honour • severity of offender’s
of victims in their town penalty;
or city. • offender/s sentenced to
keep distance regarding
victims;
• having received physi-
cal/mental health care
and compensation over
time;
• existence of an institu-
tional infrastructure to
favour being asked for
apologies;
• religious institutions
support;
• strength of the victims’
lobby;
• strength of the prison-
ers’ lobby. ...
336 Gema Varona

with so much suffering… And I have taken part in that. When I entered prison
I thought: ‘What have I done?’ (…) I think terrorists participating in violence
for many years never sleep well, but questioning it means renouncing your own
life… Awareness comes with time. It is not something that happens from one
day to another, there are different steps and it takes a lot of time.59

Victims and victimizers have recognized the difficulties for repentant former ter-
rorists because they and their families might be under pressure from ETA and the
abertzale left. According to another participating victim:60

I am in favour of talking, negotiating is another thing… One day, all these

people will be out of prison. If they are repentant, it will be better. Without
more hate… ETA must dissolve; prisoners have to serve their sentences. But,
what is wrong with these encounters? That one asking you for sincere for-
giveness, should be listened to? My faith teaches me this… I asked him why
he was sitting in front of me. He told me he wanted to apologize and showed
a deep remorse. He told me one day he would have to tell his own children
and that he could not sleep.

Regarding reparation of social harms, a victim whose father was murdered in

1980 points out how victims were previously identified and stigmatized, particu-
larly in small towns: ‘I said that rumours, people talking, killed him. I think that
the one talking and the one shooting are both accountable.’61
Where participatory mechanisms of restorative justice are considered as a reac-
tion to diffuse victimization, the time factor is important.62 Here circles and con-
ferences can be envisaged63 so that relatives, friends, and professionals and social
agents supporting victims and victimizers might participate and assure the com-
munity link in the restoration process. This offers the opportunity for personal,
interpersonal and social harms to be taken into account simultaneously. In any
case, within the specific Basque context, the meaning of that community link
should be scrutinized with the aim of ensuring that citizens’ democracy based on
human rights prevails over authoritarian forms of relationships. At the same time,
the central role of victims in the justice response should be guaranteed, although
this does not mean excluding other actors’ contributions.

The potentialities and limits of forgiveness

Elsewhere I have argued that the main objective of restorative encounters should
not be forgiveness, but material and symbolic reparation and restoration (Varona
2012a). Forgiveness, in its private, interpersonal and public dimensions, is too ambi-
tious and goes beyond what many victims and victimizers and their communities
might acquiesce to. In fact, there are a few examples of victims of terrorism who had
already forgiven the offender before they met.64 Obviously, private and public acts
of forgiveness should be welcomed whenever this is possible and fair.65
 ETA terrorism victims in Spain 337

In relation to the forms of impunity feared by victims and restorative justice,

there are different works on the connection between historical impunity and the
value of forgiveness.66 Beyond the current fashion of public contrition or apolo-
gies identified with sentimentality, examples described in Brooks (1999, p. 3) are
‘a matrix of guilt and mourning, atonement and national revival’. From another
perspective, Reyes (2011) explains the emergence of past consciousness as a
cultural trend, originating in Holocaust studies. It increases victims’ visibility and
questions historical progress based on macro-level political-economic rationales
to the neglect of concrete, individual human suffering.
As defined before, what is essential in restorative encounters is restoration as
bringing together reparation to victims (including recovery, memory, truth, dig-
nity and justice) and offenders’ accountability. Victimizers might act as restora-
tion agents by listening to victims; answering their questions; recognizing their
dignity and their own accountability; trying to repair what is possible; engaging in
memory projects for irreparable harms and in social prevention programmes.
Restoration is wider than forgiveness and allows stating the irreparable nature
of many harms while avoiding secondary victimization to participating and non-
participating victims of terrorism at the same time. This is so because it avoids
placing the burden of forgiveness and future reconciliation upon them. Society
and policymakers cannot stigmatize victims as ‘good’ or ‘bad’ (revengeful) just
because they exercise their right to refuse participation in restorative encounters
or, if they do, to decline to pardon offenders.67
In any case, due to the current Spanish legal provisions requiring forgiveness
in the last phases of prison sentences for terrorism, its private, interpersonal and
public dimensions over time should be clarified or at least acknowledged. Accord-
ing to Bernard Offen, Holocaust survivor:

I have forgiven for what happened to me, for my own suffering. However, I
cannot forgive for what others have suffered, for example, my family. I can-
not forgive in their name. I think I reached forgiveness, and that is something
that has allowed me to recover from the anger I felt. What happens is that I
cannot avoid that that anger comes back from time to time. Then I have to
forgive again.
(El País, País Vasco 15 October 2011, p. 5)

In similar vein to the victims’ associations Guiding Principles for a Model on

the end of ETA without Impunity, the sister of Yoyes – a former terrorist who
was killed by ETA in 1986, in front of her young child – declared: ‘She was
killed in a public manner, and that is the manner in which her offender should
repent for his murder.’68 Therefore, there should be a reinterpretation of the
role of forgiveness in terms of restorative justice that goes beyond personal and
therapeutic issues.
In relation to programme aims and access, international standards do not clarify
whether beyond recognition of evident harm, offenders should not justify their
338 Gema Varona

behaviour in order to participate in restorative programmes.69 That means that

violence can never be justified as there is always a margin for individual free
decision. In practice, due to the pluralities of the experience of victimization,
flexibility to allow potentialities of the restorative process together with profes-
sional control to avoid secondary victimization should be promoted. Excuses
might not be always regarded as justification70 and encounters might be produced
with victims willing to question that kind of justification or neutralization of
accountability.71 Beyond paternalism over victims, the facilitators’ role and power
are crucial at this point.

Concluding remarks
Restorative justice might offer something beyond dualism in the current legal
analysis of terrorism. This mainstream analysis focuses on the balance between
freedom and security. In peace theories on violent conflicts, it is expressed as the
balance between justice and peace.
Restorative justice could promote the integration of diverse individual expe-
riences without neglecting the macro and meso-level context. This chapter has
focused on ETA cases, but restorative programmes can be conceived for victims
of other terrorists in the Basque Country and for victims of other serious crimes,
for instance torture.
Due to the influence of political ideology upon the concept of terrorism and
terrorist victimization, restorative justice in this field has specific limits, but also
potential. Victims have real reasons to be suspicious of restorative justice, but
their qualms are also due to emotional elements grounded in a sense of historical
impunity. For this reason among others, promoters of restorative justice should
apply scientifically informed and transparent policies.
Experience with encounters between victims and offenders of serious crimes
have been accumulating in the past decades in the USA, Canada, Australia and
Europe. This experience reveals the potential for reparation and lack of secondary
victimization.72 Concrete experience of restorative processes in cases of terrorism
can be found in Northern Ireland, Germany, Italy, Israel and Colombia. Most of
these examples followed the cessation of terrorist activity and a process of self-
criticism.73
This evidence tells us that restorative programmes can positively enrich social
and institutional responses to victims of very serious crimes. This is only possible
if participants’ personal autonomy is respected and supported, not as a private
process of recovery or return into society, but as a forum to express all dimensions
of harms, including public and social harm.
In other work considering international standards (de la Cuesta and Varona 2012),
we emphasized the following five critical issues in developing practical safeguards
to minimize the risks of secondary victimization in relation to restorative encounters
for terrorism victims: the extent of victims’ and victimizers’ will to participate and
 ETA terrorism victims in Spain 339

to repair and be repaired; the nature and control of facilitators’ role and power; the
diversity of harms produced in terrorist victimization (personal, material, social,
political); the alternative avenues of restoration or responses to them; and the access
to justice in relation to the rule of law in restorative processes.
In terms of human rights and participation, restorative justice might offer
a better platform for a victim-centred response that simultaneously acknowl-
edges the importance of offenders’ reintegration in society and the interests of
the community. This is possible if restorative justice is sufficiently integrated
within the formal systems of criminal justice, health care and social work.
The relevance of informal responses should also be articulated. In the context
of Spanish criminal justice and the rule of law, the main actors’ participation
is not yet guaranteed. More risks appear in the macro-context of transitional
justice. It is likely that victims consider political decisions on adopted tran-
sitional mechanisms as arbitrary and undermining their understanding of the
rule of law.
Victims’ right to restorative encounters might be envisaged within more general
victims’ rights to justice. According to international legislation and international
doctrine, justice is understood as fulfilling legitimate expectations regarding state
action to bring suspects to trial; to prosecute and sentence them according to
democratic rule of law; to avoid secondary victimization; to have the right to a
remedy; to be compensated; and to appeal.
Much confusion exists in today’s Basque and Spanish political and public are-
nas on the meaning of restorative justice. Restorative justice should not be per-
ceived to be swift, soft or simple. It cannot be solely identified with the technique
of penal mediation because of its embrace of broader aims and its broader proce-
dural arsenal (circles, conferencing and panels). It is not a general solution in all
cases, nor is it always a success. And it cannot be a duty for victims or victimizers.
It avoids secondary victimization without transforming justice into a private issue.
It should not amount to a loss of juridical guarantees.74 It is not mainly concerned
with forgiveness, reconciliation or therapeutic outcomes.
Restorative justice has the potential to be a complex, dynamic and plural
response to victimization within – but beyond – the rule of law that offers key
roles to victims, victimizers and society. It provides willing victims and victim-
izers a space to meet and a way of communication in order to attempt to repair
harms unjustly caused, including crimes without a known offender and/or under
statute of limitations, amnesty or pardon.
The experience of injustice is subjective but conditioned by social context. One
day ETA will disappear and many victims will continue living. Terrorism might
end but the effects of its direct, indirect and diffuse victimization remain, even if
some ETA prisoners ask for forgiveness. Offenders, victims, their families, friends
and society have not come out unharmed by fifty years of terrorism. That harm
belongs to all involved actors in diverse ways, although some have not recognized
340 Gema Varona

it yet. Accountability in reacting to human suffering allows harm to be a key ele-

ment of balance between memory and justice.75
ETA’s campaign of terrorist victimization is a story of endless suffering, but
also a story of civic behaviour respecting the rule of law: as of yet no victim
has taken revenge.76 It is also a sad story, particularly for victims, because the
supporters of ETA try to convince society to look towards the future, paving
over the unjust past and subsequent accountability. However, it might be a chal-
lenging story as well, where lessons can be learned to alleviate the pain and to
prevent its recurrence. Restorative encounters in this field will be particularly
relevant if they are part of that multi-dimensional individual and collective sto-
rytelling and history.
Punishment is not the only remedy to counter injustice. Forms of severe pun-
ishment demanded by some victims of terrorism might not fulfil their rights and
profound needs in relation to justice. Formal, informal, material, performance
and symbolic responses to irreparable loss should be explored and conclusions
expanded to other crimes.77
In the recovery process, individual, interpersonal and structural factors should
be taken into account. That process has to come to terms with every individual
victim’s rights and needs, including social and institutional support; protection;
psychological assistance; information; acknowledgement; respect; reparation;
and justice. The legal system and the socio-political context condition the way
victims express their justice-related needs. If that system only provides for the
offenders’ prosecution, trial and imprisonment, this will shape victims’ expecta-
tions and demands. Subsequent failure to meet these goals will be felt by victims
to be impunity. For irreparable harms it seems that what current formal justice
offers to victims, when actually given according to democratic rule of law, does
not fulfil their profound expectations. Reasons for this frustration go beyond the
shortcomings of formal and substantial justice.
Remedies to historical injustice should be further studied. Here victims’ tes-
timonies in schools appear important.78 The work of different people who have
reacted to injustice should also be evoked. They were not indifferent and helped
terrorism victims in different ways (as relatives, friends, neighbours, intellectu-
als). Reviews of research on Holocaust rescuers, by Zawisza (2012, p. 26), reveal
that universalistic caring was the predominant value for helping: lack of indiffer-
ence, beyond the values of justice, equality and respect. Remembering the support
offered by these individuals might not be an easy task for many of us; we might
find our own actions to support and assist to victims in the Basque Country to be
left wanting.
Finally, within an ecological perspective, the relevance of places of victimiza-
tion and de-victimization should be analysed by diverse sciences and ways of
knowing, including art and photography.79 Places where terrorist victimizations
occurred serve as painful reminders to victims. The injustice they perceive in
these environments remains invisible to others. We can conceive of restorative
situational prevention of this particular form of secondary victimization. It can
 ETA terrorism victims in Spain 341

be focused on promoting democratic habitat elements in relation to social support

that might impact positively on victims’ vulnerabilities, resilience and recovery
in the short, medium and long run.80 In relation to community links, the inter-
locking Borromean rings can symbolize the strength and fragility of partnerships
when one of the concerned agents fails to cooperate.81 Future generations will
judge whether historical progress or political aims at the cost of human lives have
become more difficult to bear and the extent to which indifference towards injus-
tice has been reduced.

Notes
1 See Varona (2009, 2012a, 2012b, in press 2014); Varona et al. (2009); de la Cuesta
et al. (2011); and de la Cuesta and Varona (2012). ETA (Euskadi ta Askatasuna –
Basque Homeland and Freedom) is a terrorist group – originally – promoting the inde-
pendence of the Basque Country. Its view of the Basque Country can be described as
a land currently unfairly divided into three Spanish provinces (Gipuzkoa, Bizkaia and
Araba), Navarra and three French territories.
2 In this chapter a strict concept of terrorism victims is used, based upon Spanish legisla-
tion. For example, fatalities incurred in the commission of terrorism are not considered
victims of terrorism. On internal legislation, see articles 3, 4, 5 and 17 of the 29/2011
Spanish Act on Acknowledgement and Integral Protection for Terrorism Victims; arti-
cle 2.2 of the Basque 4/2008 Act on Acknowledgement and Reparation to Victims of
Terrorism; and the Basque Decree 290/2010 on the Development of the Integral Assist-
ance System to Terrorism Victims. On the international norms about the concept of
terrorism victims, see, among others, paragraph 2 of the 1985 UN 40/34 Resolution
on Basic Principles of Justice for Victims of Crime and Abuse of Power; article 1 of
the 2012 EU Directive on victims’ rights; paragraph 9 of the European Parliament
Resolution of 15 June 2000 on the Commission communication on crime victims; art.
13 of the Council of Europe Convention on the prevention of terrorism (2005); and
paragraph 2.3 of the Ministers Committee of the Council of Europe Recommendation
(2006) 8 on assistance to victims.
3 All quoted testimonies and texts in Spanish are free translations into English by the
author.
4 As at 2014, ETA had still not announced its disarmament and dissolution.
5 Other associations lists and academic works show the number of ETA fatal victims as
ten, twenty or more higher in total; see Alonso et al. (2010).
6 For a general understanding on ETA terrorist victimization based on testimonies and
socio psychological, historical and/or political science analysis, see inter alia Cuesta
(2000); Calle and Sánchez-Cuenca (2004); Pulgar (2004); Calleja and Sánchez-Cuenca
(2006); Aulestia (2007); Villa (2007); Sánchez-Cuenca (2007, 2010); Larizgoitia et al.
(2009); Varona et al. (2009); Arregi (2011); Cuesta Arzamendi et al. (2011); Martín-
Peña et al. (2011); and Elorza (2006, 2011).
7 See Pagazartundúa (2006, 2011), sister of a murdered chief of police of a Basque town.
Until November 2012, she worked as president of the Foundation for Terrorism Victims.
On the social context of ETA terrorism, see Salaburu (2011) and Carrión (2008).
8 See http://gracos.lainformacion.com/policia-y-justicia/terrorismo/donde-estan-encar-
celados-los-miembros-de-eta_jQ79imUtTrBzLcr9rjB1. See also www.etxerat.info/
txategia_ikusi.php?id_txategia=3422 [Accessed 1 September 2012].
9 Started in 2006. These prisoners were expelled from ETA. Nanclares is the name of the
Basque town where the prison was situated.
342 Gema Varona

10 In 2007, during the rst institutional act in honour of terrorism victims by the Basque
Government, the Basque president apologized for the institutional and social abandon-
ment of victims during many decades. This could be considered an example of state or
institutional public apology that had an echo in the Basque and Spanish legislation on
terrorism victims. Cf. in other contexts Lefranc (2004) and Aguilar (2008).
11 See the 2012 Program to develop a penitentiary policy of individual rehabilitation
within the legal framework (Madrid, 30 April). Available at: www.interior.gob.es/press/
programa-para-el-desarrollo-de-la-politica-penitenciaria-de-reinsercion-individual-en-
el-marco-de-la-ley-13712?locale=es [Accessed 1 September 2012].
12 A much-questioned policy of dispersion of prisoners to different Spanish peniten-
tiary institutions in order to facilitate desistance started in 1989. On rehabilitation,
negotiation and peace policies regarding ETA terrorism, see Escrivá (2006); Fonseca
(2006); Cuerda (2007); Campo (2007); and Fernández and Romo (2012).
13 Forgiveness is studied from different scientic perspectives and has different mean-
ings. On its subjective dimension, see inter alia Williamson and Gonzalez (2007) and
Antonuccio and Jackson (2009). On its group effects, see Worthington et al. (2000).
On its public dimension, see Van Stokkom et al. (2012) and Wohl et al. (2008). On
the relation of justice and forgiveness, see Short (2011). On the timeless dimension
of forgiveness, see Malcolm (2008). On public opinion and forgiveness, see Freed-
man and Chang (2010). On memory and forgiveness, from a philosophical point
of view, see Valcárcel (2011). From the standpoint of ethics, see Murithi (2009).
On self-forgiveness from women’s perspective, see Baker (2008). On forgiveness in
South African Truth and Reconciliation Commission, see Kaminer et al. (2001). On
reconciliation, see Finkelstein (2011). On violent offenders, see Day et al. (2008).
Basque authors like Professor Beristain (2007) had approached this debate within
ETA terrorism from a religious and victimological point of view. Cf. Buesa (2006).
14 See the documentary El Perdón. Available at: www.tv3.cat/30minuts/reportatges/1835/
El-perdo [Accessed 1 February 2012].
15 Including one that involved the director of the Terrorism Victims Ofce of the Basque
government with one member of the squad that killed her husband (El Diario Vasco 24
October 2012, p. 29).
16 On the knowledge of the desistance and rehabilitation experience of ex-terrorists, see
González (1987) and Alcedo (1997); for the case of extreme left Anti-Fascist Resist-
ance 1st of October Groups (GRAPO), see Novales (1989); on the study of judicial les
and interviews with ETA prisoners and ex–prisoners, see Reinares (2001). On Northern
Ireland see Alonso (2003). Cf., in general, Horgan (2006).
17 See El Correo 6 June 2012, p. 20. The coordinator of the original programme was
criminal law professor and lawyer Xabier Etxebarria. Professor Julián Ríos also had
an important role. Cf. the narrative of the experience from a facilitator’s point of view,
coming from Social Work, Olalde (2012). See also the reections from a magistrate in
Sáez Valcárcel (2011, 2012).
18 The abertzale left refers to a coalition of different political parties under the current name
of Bildu that has condemned violence as a political tool, but agrees with most ETA politi-
cal objectives. It is the political group that best supports the majority of ETA prisoners.
19 El Correo 26 October 2012, p. 27.
20 Cf. on the debate of some associations regarding future end of ETA terrorist violence,
El País 10 November 2011. See also the documentary lm in Spanish produced by
the Foundation of Terrorism Victims. Available at: www.fundacionvt.org/index.
php?option=com_content&task=view&id=865 [Accessed 1 September 2012].
21 Impunity is mostly identied with injustice. On the general concept of injustice, see
Sen (2010). Here I follow Reyes Mate’s (2011) reections on injustice.
22 This is a eld involving professionals of different areas such as constitutional, crimi-
 ETA terrorism victims in Spain 343

nal, procedural and administrative law. On restorative justice and different stakeholders
within the legal profession, see Shapland (2011).
23 Comprehensive law is understood as a movement that considers subjective and inter-
personal dynamics of legal affairs. Practical examples of this movement are drug treat-
ment and mental health courts. See Daicoff (2006).
24 In all these theories concepts such as reparation, forgiveness or recovery do not nd a
unanimous denition.
25 The term amnesty is not mentioned in the 1978 Spanish Constitution. As for the term
pardon, in section 62 it is stated that it is incumbent upon the king ‘i) to exercise the
right of clemency in accordance with the law, which may not authorize general pardons’.
Because of this provision most academic experts understand that amnesties are forbid-
den in the Spanish legal system. Popular initiative for submission of non-governmental
bills is not allowed on the prerogative of pardon (section 87). The prerogative of pardon
shall not apply to the criminal liability of the President and other members of the govern-
ment (section 102). The granting of pardons is ruled by an old Act of 1870, modied in
1988 and 1995 where, inconsistently in today’s human rights conception, most victims do
not play any role. The granting of pardons has been criticized by different human rights
activists as being a door for impunity for white-collar and abuse of power crimes. See the
general study on the kind of crimes granted pardons since 2000 by Doval et al. (2011).
26 See note 2.
27 The case of Northern Ireland has always served as an example for the abertzale left.
On Northern Ireland and transitional justice, see McEvoy and McGregor (2008) and
McEvoy (2010).
28 On the debate on amnesties, see Mallinder (2008).
29 Cf. Vriezen (2012) on balancing the need of (re)-building the rule of law with the need
to end human rights violations in the case of amnesties. On the development of specic
victims’ human rights, see Tomás Sánchez (2012). For the case of terrorism victims,
see Letschert et al. (2010); and for victims of transnational crimes, see Letschert and
van Dijk (2011). On human rights and restorative justice in general, see Skelton and
Sekhonyane (2007).
30 Cf. Cuesta (2011) and Bourke (2011) in relation to the expanding concept of human
rights.
31 On the relation of transitional and restorative justice from victims’ point of view, see
Díaz Colorado (2008).
32 See for example Clamp and Doak (2012).
33 It should not be forgotten that many victims were killed by ETA outside the Basque
Country.
34 The European Court of Human Rights has condemned Spain on several occasions for
not carrying out an effective investigation on alleged torture related to the detention
of suspects of ETA terrorism. European Court judgements do not consider the actual
existence of torture but they determine that the Spanish state violated art. 3 of the Con-
vention due to the vulnerability context of the incommunicado detention regime. This
violation is regarded in procedural terms.
35 This so-called Parot doctrine refers to the Supreme Court decision in 2006 ruling that
the reduction of sentences in exchange for labour – according to the 1973 penal code in
force when convicted – must be calculated on the total sentence and not on the maxi-
mum prison sentence of 30 years, as it was done until then.
36 According to that Act, in 2003 the abertzale left, then under the name of Batasuna, was
made illegal. Later the European Court of Human Rights considered this illegalization
consistent with the European Convention. The political party coming from the abert-
zale left, but separated from it then because it always denounced violence, Aralar, was
not illegalized.
344 Gema Varona

37 Informe sobre víctimas del terrorismo practicado por grupos incontrolados, de

extrema derecha y el GAL (2008). Available at: www.interior.ejgv.euskadi.net/r42-
440/es/contenidos/informacion/informacion_documentos_interes/es_document/
adjuntos/informe%20nal.pdf [Accessed 1 February 2012]. See information in Eng-
lish provided by the University of Maryland on GAL, acting until 1987. Available at:
www.start.umd.edu/start/data_collections/tops/terrorist_organization_profile.
asp?id=3933 [Accessed 1 February 2012]. It refers to the trial of several politicians and
policemen and subsequent granting of pardons.
38 See mainly the Spanish 32/99 Act on Solidarity with Terrorism Victims.
39 El Diario Vasco 1 April 2009, p. 27.
40 Víctimas de vulneraciones de derechos humanos y sufrimientos injustos producidos
en un contexto de violencia de motivación política (2010). Available at: www.interior.
ejgv.euskadi.net/r42-victimas/es/contenidos/informacion/informacion_documentos_
interes/es_document/documentos_interes.html [Accessed 1 February 2012].
41 See the Basque Decree 107/2012, of June 12, on declaration and reparation of victims
of unjust sufferings consequence of human rights violations between 1960 and 1978,
in the context of politically motivated violence experienced in the Basque Autono-
mous Community (declaración y reparación de las víctimas de sufrimientos injustos
como consecuencia de la vulneración de sus derechos humanos, producida entre
los años 1960 y 1978 en el contexto de la violencia de motivación política vivida
en la Comunidad Autónoma del País Vasco). Available at: www.jusap.ejgv.euskadi.
net/bopv2/datos/2012/06/1202804a.pdf [Accessed 1 September 2012]. It should be
noticed that most of that period was under Franco’s dictatorship.
42 On victim participation in therapeutic jurisprudence, see Erez et al. (2011).
43 See Lind and Tylor (1988); and Röhly and Machura (1997).
44 El País 5 November 2011, p. 24.
45 See Edgardo Rotman (2008). Cf. Wexler (2011).
46 El Mundo 22 January 2012, p. 11.
47 Here we consider the classical book by Zehr (1990), as well as the reintegrative sham-
ing perspective within the republican theory of Braithwaite (1989). On most recent
research results on the matter, see inter alia Vanfraechem and Aertsen (2010). Cf.
Walker (1999). On its meaning in criminal procedure, see Gyökös and Lany (2010).
On its real impact and limitations, see Daly (2002).
48 On the concept of de-legitimation of terrorism, see Fundación Fernando Buesa (2011).
49 One such victim was University professor Iñaki García Arrizabalaga (see some of his
declarations in El Diario Vasco 4 December 2011, p. 40; El País 26 September 2011,
pp. 12–13; El País Domingo 18 December 2011, p. 6; El Mundo 22 January 2012,
p. 11). Anti-capitalist Autonomous Commando Units, separated from the ETA, kid-
napped and murdered his father, a representative of the Spanish Telephone Company,
in 1980. García Arrizabalaga was then 19 years old. He has kept contact with the
offender after the encounter.
50 El País 27 February 2012, p. 19.
51 On the meaning of the encounters, see Lozano et al. (2011).
52 El País 25 September 2011, p. 10.
53 On assistance to victims and its relation to the criminal justice system, see Hagemann
et al. (2009).
54 For a further debate on truth and justice, see, among others, Park (2010).
55 On the meaning of restoration to victims, see Bolivar (2012).
56 Beristain questioned the concept of de-victimization, developed in Spain in the psycho-
logical arena (2007). He linked it to a more structural macro-victimization where many
harms are irreparable and some indirect victims (relatives of the murdered person) feel
they have the duty to remember the injustice so it might have a positive sense in order
 ETA terrorism victims in Spain 345

to avoid further injustices in the future. We can relate this to previous considerations on
the perspective of critical victimology.
57 On the methodological difculties to assess diffuse victimization, see Martin-Peña
et al. (2011).
58 Josu Elespe (El Diario Vasco 24 December 2011, pp. 39–40). His father, a socialist
politician in a Basque town, was shot while he was in a bar in 2001.
59 Iñaki Rekarte, in El Diario Vasco 31 December 2011, p. 42.
60 María del Carmen Hernández, widow of a popular politician murdered by ETA in a
Basque town in 2000. She continues to visit a psychologist once a month. When her
husband was killed, one neighbour told her: ‘Now they killed him, before that they just
didn’t let him live.’ Regarding the pictures of ETA prisoners on the walls of some build-
ings of her town, she said: ‘The mayor says those pictures don’t harm anybody. They
do harm me’ (El Mundo 22 January 2012, p. 10).
61 Antonio Domínguez, whose father, a gravedigger in a small town, was murdered
in 1980 (this testimony appears in the documentary lm by Iñaki Arteta, Voces sin
libertad).
62 Different circles in time with different aims (sentencing and reparation; support and
accountability; healing and reconciliation, as well as prevention of (re)victimization).
63 On their signicance and impact, see Blad and van Lieshout (2010); Walker and Green-
ing (2011); Zinsstag and Vanfraechem (2012); and Guardiola (2012). About the rela-
tion of circles with the good lives theory, see Willis and Ward (2010). On responses
based on supported accountability, see Jones (2008).
64 Jo Berry in Northern Ireland and one ETA victim mentioned in the documentary lm
El Perdón (2012). As part of a recovery process, sometimes related to religious beliefs,
one person can forgive even if the responsible one doesn’t ask for it. At the same time,
being forgiven doesn’t mean that offender can forgive himself. This expresses the com-
plexity of private, interpersonal and public dimensions of forgiveness. On self-forgive-
ness, see Holmgren (2002) and Umbreit (2005).
65 On the international trend towards public apologies, see the volume edited by van Stok-
kom et al. (2012).
66 Victims’ claims to avoid historical impunity is an interesting topic for further reection.
See Boerejn et al. (2012).
67 This is something that former terrorists themselves have considered, as Adriana Faran-
da’s case in Italy showed. On political and social pressure over victims to go to a
psychologist or a priest rather than to a judge, and the difference between justice and
revenge, see Savater (2012). Cf. for a broader debate on victims and revenge, Strang
(2002); Rohne (2008); and Frankenberg (2010) on punitiveness. On the meaning of
emotions in the criminal justice system, see Karstedt et al. (2011).
68 El País 27 February 2011, p. 19.
69 Spanish legislation on forgiveness in terrorist crimes doesn’t clarify this.
70 Cf. Scott and Lyman (1968).
71 See the cases of Jo Berry and Iñaki Arrizabalaga.
72 On the possibilities of restorative justice and serious crimes, see among others, Vos and
Umbreit (2000); Szmania (2006); Strang, Angel and Van Camp (2008); Peterson (2010);
Van Droogenbroeck (2010); Romera (2011); van Camp and Wemmers (2011); Ríos
et al. (2012). See also the work of the Centre Restorative Justice & Peacemaking. Avail-
able at: www.cehd.umn.edu/ssw/rjp/Training/default.asp [Accessed 1 February 2012].
73 See Jamieson (1989); Gastaminza (2007); González (2006, 2008); and Staiger (2010).
74 See Ferrajoli’s guaranteeing model (1995). The legal system should limit private and
public power, supporting the weakest part by conditioning all decision or act to the
content of fundamental rights in an interdependent and indivisible conception.
75 See Jones (2008).
346 Gema Varona

76 Out of 829 families who suffered the murder of a relative, only one person (a son) has
attempted to revenge his father. Similarly, nobody out of about 16,000 injured and
several kidnapped people attempted revenge.
77 On restorative justice and torture, see Schechtman (2005).
78 On a peace culture in the Basque Country, see Bilbao and Etxeberria (2005); Páez and
Martín (2009); and Pérez (2010). Cf. on the relevance of historical archives, which
could include evaluation of restorative encounters, Schubotz et al. (2011). On memory
and history, see Etxeberria (2010).
79 Cf. Uribe (2011) who gives us some knowledge, relevant to victimology, coming from
photography.
80 Cf. Vertigans (2011) on the concept of affordance. About its relation to group identity,
see Eagly et al. (2010).
81 The Borromean rings are named after the coat of arms of the Borromeo family in f-
teenth century Tuscany. In mathematical terms they consist of three circles which are
interlinked.

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Chapter 17

Victims of corruption
A conceptual framework
Qingli Meng and Paul C. Friday

Introduction
Research on corruption shows that bribery not only stymies development, but
also has an impact on health services, literacy rates and the environment. This
chapter is an effort to conceptualize in detail how corruption victimizes the soci-
ety as a whole, its institutions and individuals. When corruption is prosecuted,
the victims and their needs are generally ignored. This chapter attempts to cre-
ate a model of the impact of corruption that recognizes the different dimensions
of corruption. Corruption may be incidental (bribes to junior public officials),
sporadic (affects different/select aspects of government) or systemic/endemic
(having a developmental impact). Corruption infringes the fundamental human
rights to fair treatment, unbiased decision-making, and secure civil and politi-
cal status. Corruption can cause individual damage, institutional damage, and
social or societal damage. Damage can be tangible or abstract. Recognizing
these dimensions can aid the process of recognizing the different needs of vic-
tims of corruption.

Extent of corruption
Corruption is considered a serious hindrance to a country’s social, economic and
political development. Its power undermines the rule of law and results in the
inefficient distribution of scarce resources, the demoralization of political systems
and the abrogation of respect for human rights (United Nations 2012a). Embez-
zlement and other forms of corruption are recognized as serious issues in many
countries, yet it is extremely difficult to assess the extent of these corruption forms
on a worldwide scale. A number of facts have emerged showing that bribery and
corruption are especially widespread in developing countries.
According to Transparency International (2010), corruption is estimated to
increase the cost of achieving the UN Millennium Development Goal on water
and sanitation alone by US $48 billion, and poor families in Mexico spend an esti-
mated one-fifth of their income on petty bribes where bribery in public services
cost the economy 32 billion pesos (US$ 2.6 billion) in 2010.
356 Qingli Meng and Paul C. Friday

The same source states that in Bangladesh 84 per cent of the households who
had interacted with one or more different public and private service sectors or
institutions have been victims of corruption in 2010 with 33 per cent of these
Bangladeshi people experiencing corruption in healthcare services. In addition,
Transparency International reports findings from a seven-country study in Africa
– Ghana, Madagascar, Morocco, Niger, Senegal, Sierra Leone and Uganda. The
study showed that 44 per cent of the parents surveyed had paid illegal fees for
schools that were legally free for their children.
Corruption is not simply a developing country problem; it is a global chal-
lenge (Stapenhurst and Sedigh 1999). Those concerned now recognize that cor-
ruption is not a private matter between corrupted and corruptor, but something
that may destroy and degrade whole economies and cultures (World Economic
Forum 2012). Transparency International (2011) produces a Corruption Percep-
tions Index, which ranks countries/territories based on how corrupt their public
sector is perceived to be. A country/territory’s score indicates the perceived level
of public sector corruption on a scale of 0–10, where 0 means that a country is
perceived as highly corrupt and 10 means that a country is perceived as free from
corruption. A country’s rank indicates its position relative to the other countries/
territories included in the index. A cursory review of the nations involved shows
that corruption is pervasive, affecting developed and developing countries alike.
The country perceived to have the lowest rate of corruption with a score of 9.5 is
New Zealand (Transparency International 2011) followed by Denmark (9.4), Fin-
land (9.4), Sweden (9.3) and Singapore (9.2). The United States ranks 24th (7.1);
China is 22nd (7.2). Those perceived to be the most corrupt are Afghanistan (1.5),
Myanmar (1.5), and Somalia (1.0).
Overall, Transparency International categorizes three levels of corruption. High
rate corruption countries mainly include countries in Southeast Asia, the Middle
East, Latin America and parts of Africa. The medium rate corruption countries
include developed countries such as Germany, the United States, Austria, France,
Belgium, Japan and South Africa. The low rate corruption countries include devel-
oped countries like Singapore, New Zealand, Denmark, Finland, Canada, Sweden,
Australia, Switzerland, The Netherlands, Norway and the United Kingdom. The
low rate countries appear to have an effective adherence to the rule of law, good
monitoring mechanisms, and a ‘well rounded citizenship’ (Rose-Ackerman 2002;
Treisman 2006).

Manifestation and costs of corruption

Given the differing moral standards, values and economic organization of devel-
oped and developing societies, what constitutes and is labelled as corruption and
the forms corruption takes within these two different social and institutional sys-
tems are not identical (Kwong 1997). Cultural differences decide tolerances to
corruption in various societies. The identification of what corruption is and what
should be considered corruption is key to any significant anti-corruption effort. In
 Victims of corruption 357

the high gift-giving culture of China, corruption is often disguised by so-called

gift-giving behaviours. So the unveiling process of gift-giving with the nature
of corruption behaviour is one of the major tasks in anti-corruption measures.
Depending upon its degree, form and dimensions, corruption can be grand or
petty, infrequent or pervasive, complicated or simple, direct or indirect, bilateral
or unilateral, open or secret, routine or non-routine.
Definitions of corruption vary, depending on scholarly perspectives. Nye
(1989), who focuses on the individual actors, sees public official corruption
as deviant behaviour from one’s formal duty because of rent-seeking, which
can be demonstrated via either private financial or status gains, or both, or the
‘violation of rules against the exercise of certain types of private regarding
influence’ (Nye 1989, p. 966), including bribery, use of reward to pervert the
judgement of a person in a position of trust; nepotism, bestowal of patronage
by reason of ascriptive relationship rather than merit; and misappropriation of
public resources.
Klitgaard (1991) takes a more institutional economic approach, defining cor-
ruption by a formula in which corruption equals monopoly plus discretion, minus
accountability. Monopoly power is conducive to corruption (Rose-Ackerman
1978; Della Porta and Vannucci 1999; Della Porta and Rose-Ackerman 2002).
Klitgaard (1991, p. 75) states that ‘illicit behavior flourishes when agents have
monopoly power over clients, when agents have great discretion, and when
accountability of agents to the principal is weak’. Corruption is not only limited
to the embezzlement of public funds but extends to nepotism, bribe taking, cut-
ting corners, undue influence, favouritism, lack of due process, lack of morals and
neglect of acceptable societal values.
The nature of corruption is both covert and consensual. Corruption is such a
secretive process in most cases that it is difficult to expose. ‘Unlike the situa-
tion with many other types of crime, corruption benefits people on both sides
of the immediate equation—those paying bribes to gain favours, for example,
and those receiving bribes—giving both an interest in secrecy’ (Stapenhurst and
Sedigh 1999, p. 106). In general, there seem to be no obvious or direct victims
even though corruption has a negative impact on the image of society and causes
tremendous social welfare loss. ‘The victims—for example, taxpayers who are
overcharged for public services, or honest business people who lose contracts
because of corrupt procurement practices—do not usually know what has hap-
pened’ (Stapenhurst and Sedigh 1999, p. 106).
In developing countries corruption has hampered national, social, economic
and political progress (Lambsdorff 2005). In a recent survey of 150 high level
officials from 60 third world countries the respondents ranked public sector
corruption as the most severe obstacle confronting their development process
(Gray and Kaufmann 1998). Public resources are allocated inefficiently, com-
petent and honest citizens feel frustrated and the general population’s level of
distrust rises (United Nations 2001). As a consequence, productivity is lower,
358 Qingli Meng and Paul C. Friday

administrative efficiency is reduced and the legitimacy of political and eco-

nomic order is undermined. The effectiveness of efforts on the part of devel-
oped countries to redress imbalances and foster development is also eroded:
foreign aid disappears, projects are left incomplete and ultimately donors lose
enthusiasm (Svensson 2000). Corruption in developing countries also impairs
economic development by transferring large sums of money intended for aid
and investment into corrupt officials’ offshore bank accounts beyond reach of
the nations in question (United Nations 2001).
This reverse flow of capital leads in turn to political and economic instability,
poor infrastructure, education, health and other services and a general tendency to
create or perpetuate low standards of living. ‘In short, it increases wealth for the
few at the expense of society as a whole, leaving the poor suffering the harshest
consequences’ (World Bank 2012a). Some of those effects can be found in devel-
oped countries as well, although here the government’s ability to combat corrup-
tion is greater since corruption is less widespread and is concentrated in certain
types of business/government enterprises such as international trade, construction
and defence contracting.
Corruption is also enhanced by the presence of organized crime at the domestic
and international levels (Griffith 1997; World Economic Forum 2003). Apart from
the obvious incentives for organized criminal groups to launder and conceal their
assets, various forms of corruption allow such groups to minimize the risks and
maximize the benefits of their criminal activity. In the case of organized crime,
corruption raises the danger of corrupt political and judicial practices (Buscaglia
2000) to the point that organized crime can ‘capture the State by co-opting public
institutions’ (Buscaglia and van Dijk 2003, p. 9). Officials can be bribed to over-
look and sometimes even participate in the smuggling of commodities ranging
from narcotics to weapons and human trafficking. In any case, official corruption
is an essential part of the growth of organized criminal activities.
While systemic and widespread corruption is often viewed as an individual
crime problem where anti-corruption measures focus on deterrence and criminal
and penal measures (Huther and Shah 2005), a broader perspective sees corrup-
tion as rooted in deeper social, cultural and economic factors and recognizes that
those factors must also be addressed if the fight against corruption is to succeed
(Aidt 2009). It is also recognized that the deleterious effects of corruption go far
beyond harm to individual victims. Corruption represents a serious obstacle to
enhancing economic growth and to improving the lives of the poorest segments of
the population in developing countries and societies and economies in transition.
Development agencies have come to understand that corruption not only erodes
the actual delivery of aid and assistance, but undermines the fundamental goals of
social and economic development itself.
This broader understanding of the nature of corruption has led those con-
fronted with it to seek more broadly based counterstrategies, such as the imple-
mentation of operational social control mechanisms at the national and local
levels. Reactive criminal justice measures are now supplemented by social and
 Victims of corruption 359

economic measures intended not only to deter corruption but also to prevent it.
The recognition that public sector and private sector corruption are often simply
two aspects of the same problem has led to strategies that involve not only pub-
lic officials but also major domestic and multinational commercial enterprises,
banks and financial institutions, other nongovernmental entities and, in many
strategies, civil societies in general (Huther and Shah 2005). This broader per-
spective suggests that corruption manifests itself differently depending upon the
structure and development level of a given society. It also suggests that corrup-
tion impacts (victimizes) both individuals and the society itself. The impact of
corruption is not one-dimensional.

A conceptual framework
The idea that a corruption is a ‘victimless crime’ is inaccurate. It implies that
corruption is merely a matter of morals or an individual’s decision. The damage
caused by corruption is both material (human and financial loss, for example) and
also immaterial or more abstract (loss of trust and credibility, for example); it can
also simultaneously affect individuals (bidders who lost in a procurement process
tainted by corruption), identifiable groups of people (children of a specific school)
and also members of a community (such as the citizens of a country). As sug-
gested above, the victims of bribery are often those living in poverty in the devel-
oping world in countries rich in resources but dominated by corrupt governments.
While the vast majority of these citizens remain very poor, their elected officials
accumulate enormous personal wealth, taking millions in bribes from corpora-
tions looking to secure lucrative contracts. These are the victims of corruption: a
poor man who dies because of lack of efficient and affordable health care; a poor
woman who is malnourished, hopeless and is not sure of where the next meal will
come from; and a woman who dies in childbirth because of lack of access to medi-
cal care. In addition, a child who dies because of neglect and millions of children
who are denied a basic education, food and medical care are victims. It is clear
that individuals are victims of corruption and, as has been noted above, corruption
also has definite effects on the society itself.
What follows is an exploratory effort to conceptualize a victimology of cor-
ruption. It is simplistic to say that both individuals and the society itself can be
victims of corruption. We attempt to explore in more detail exactly how corrup-
tion victimizes individuals and society by conceptualizing levels of victimization
and how each level is affected by the ways corruption manifests itself. We do not
view the categorizations as mutually exclusive but we offer them in an attempt to
stimulate a more detailed discussion on the harm caused by corruption.

Levels of victimization
Individual behaviours, conforming or deviant, can be viewed as the product
of individual, institutional and wider social structural factors (Friday 1988).
360 Qingli Meng and Paul C. Friday

Individual behaviour is influenced not only by personal characteristics such

as age, race, gender and personality but also by interaction with others within
social institutions such as the family, school, religious and governmental insti-
tutions. These institutions are also part of wider structural contexts such as the
political economy, degrees of urbanization and cultural factors that tend to
transcend time and individual influence. These levels of analysis, structural,
institutional and individual, help explain human behaviour and they can also
be used to help explain the levels of victimization.
We argue that not only can the cause of corruption exist on these different
levels but that the victims of corruption also fall on these levels. Individuals are
victims of corruption but so too are the social institutions within which corrup-
tion occurs and, subsequently, the society itself can be considered a victim of
corruption.

Structural level
Corruption has been tied to political, demographic and cultural or structural
aspects of society. Societies have been classified according to their structural
dynamics. Using subjective ratings, Treisman (2006) found that highly developed,
long-established liberal democracies, with a free and wide-reaching press, a high
proportion of women in government and a history of open trade are perceived
as less corrupt while countries that depend on natural resources or have invasive
business regulations and unpredictable inflation are perceived as more corrupt.
Despite cultural and linguistic differences in Nigeria, one thing that most Nige-
rians will agree on, argues Uwakwe (2012), is the fact that corruption has eaten
into the fabric of the country. He argues that the consensus is that corruption
is so embedded in national life that everybody appears to have accepted it as
part of doing business in or with Nigeria. Unfortunately, the culture of Nigeria
has become synonymous with corruption, suggesting that the society itself has
become victimized by widespread and pervasive corrupt practices. Corruption is
not just the product of immediate material incentive, but is also influenced by cul-
tural orientations that are acquired through socialization and a society’s historical
heritage (Sandholtz and Taagepera 2005).
Structural level victimization. Olaya et al. (2010), using a case study in Costa
Rica, argue that corruption has an effect on the national economy (a structural fac-
tor) by reducing the investor’s trust. Corruption also impedes economic growth,
making the society a victim. With rampant corruption, foreign and domestic invest-
ment is discouraged because corruption destroys predictability and increases the
cost of doing business. It increases the uncertainty and risk attached to investment
and reduces incentives for entrepreneurs. This is supported by studies focusing on
bilateral money transactions between 14 source and 45 host countries in 1990 and
1991, showing the significant negative impact of corruption on foreign direct invest-
ment (Wei 2000). Other research provides strong evidence that corruption lowers a
country’s attractiveness to international and domestic investors (Lambsdorff 2005).
 Victims of corruption 361

This reduces capital accumulation and lowers capital investment. Also, the produc-
tivity of capital suffers from corruption.
Corruption has been shown to infringe on the fundamental human rights to fair
treatment, unbiased decision-making, and secure civil and political status (Evans,
n.d.). Corruption also undermines the ability of societies to develop through
investment and aid. Mauro (1995) finds that in a sample of 67 countries, in all
cases corruption impacts negatively on the ratio of investment to GDP.

Institutional level
All societies have norms and expectations which are learned through interaction
within the family, in schools, in community organizations and peer groups (Tar-
rant 2002). Behaviour associated with these norms and expectations is also learned
(Bandura 1989). This occurs as a result of the roles individuals learn to play.
The institutional level theories explain crime as a function of the transmission of
norms and values by the social institutions in a given society. Informal constraints
come from socially transmitted information and are a part of the cultural heritage
(North 2005), which can be defined as the ‘transmission from one generation to
the next, via teaching and imitation, of knowledge, values, and other factors that
influence behavior’ (Boyd and Richerson 1985, p. 2). Ngo (2008) argues that
rent-creation and rent-seeking are difficult to eliminate because they have become
institutionalized as the constitutive parts of economic governance.
Different societies have various degrees of tolerance towards certain deviant
behaviours. The degree of tolerance depends on the socialization of behaviour
through the cultural transmission of cultural precepts, differential association, and
techniques of neutralizations (Lima and Friday 2005). The decline in the moral
costs of corruption stimulates its further spread. Thus, institutions serve as the
context within which the values of corruption are transmitted and they are also the
victims of that same transmission.
Institutional victimization. Corruption consumes the very agencies that gen-
erate it. This is accomplished through socialization and socialized expectations.
Institutions, such as the police or other governmental agencies can become cor-
rupted, thereby negatively impacting the citizens they are expected to serve. There
is strong evidence that corruption distorts government expenditure and reduces
the quality of a wide variety of government services, such as public investment,
health care, tax revenue, investment in education and environmental control
(Mauro 1998). This corroborates the argument that large welfare losses result
from corruption.

Individual level
While studying corruption, the individual actor, his self-concept, social role and
definition of the situation are the main forces determining behaviour. Each of
these – self-concept, social role and how one defines situations – are the product
362 Qingli Meng and Paul C. Friday

of the socialization that occurs at the institutional level. However, each individual
is unique and one must also look at variances in exactly how an actor interprets
the world around him or her. According to Margolis (1982) an individual pos-
sesses two utility functions: the usual self-interest preference function and the
purely social/group interested preference function. This suggests that people act
to fulfil both selfish, individual, egoistic interests as well as altruistic or collective
interests. Applying this to corruption, ‘Public servants may achieve mediocrity if
they work strictly within the limit of the law; yet, in order to reach levels of excel-
lence, they must include the essential values of humanism, solidarity and toler-
ance in that exercise’ (Lima and Friday 2005, p. 440). Sugden (1986) maintains
that a convention acquires moral force when almost everyone in the community
follows it and it is in the interests of each individual that people with whom he or
she deals follow the rule providing that the individual does too. This is a ‘moral-
ity of cooperation’ (Sugden 1986, p. 173). Corrupt officials, like most criminals,
can find justifications for their deviant behaviour by adjusting the definitions of
their actions and by explaining to themselves and others the lack of guilt of their
actions in particular situations (Sykes and Matza 1957).
Individual victimization. In short, corruption victimizes people. The impact
may be very direct when, for example, aid money is siphoned into private bank
accounts or bribes distort public spending priorities, thereby denying individu-
als the aid they were meant to receive. The poor will also suffer indirectly when
bribery structurally damages a whole economy and public services are reduced or
eliminated. Those who are poor are most dependent on good public services, for
they have few alternatives and they cannot afford, for example, private health care
or schools (Evans, n.d.).
In summary, a better way of looking at the victims of corruption is to put vic-
timization into a conceptual framework that includes three levels – Individual
(people), Institutional (social institutions such as education, government agen-
cies) and Structural (natural and economic resource distribution, environment and
culture).

Manifestations of corruption
We have argued that corruption as a phenomenon is caused by factors on three
levels of analysis: structural, institutional and individual, and that victims of
corruption can be found at each of these levels. The extent and frequency of
corruption varies across societies. It can be extensive or incidental. We argue,
based in part on the glossary of corruption provided by U4,1 that corruption
can be systemic or endemic (as part of the fabric of the society and deep
rooted). Corruption can also be sporadic, occurring irregularly and not threat-
ening the mechanisms of control nor the economy as such. Being sporadic it
is not crippling, but it can seriously undermine morale and sap the economy
of resources. It is selective and appears in diverse segments of society. We add
a third manifestation – opportunistic or incidental. In this instance corruption
 Victims of corruption 363

is unpredictable and occurs only when the opportunity presents itself to the
corrupt official or person providing services.

Systemic corruption
Corruption is systemic or endemic when it is widespread throughout the soci-
ety and where the population considers it as part of their cultural expectations:
the corruption is an integrated and essential aspect of the economic, social and
political system. Systemic corruption is not a special category of corrupt prac-
tice, but rather a situation in which the major institutions and processes of the
state are routinely dominated and used by corrupt individuals and groups and
in which most people have no alternatives to dealing with corrupt officials.
According to U4 (2012), systemic corruption is corruption which is primarily
due to weaknesses of social processes, i.e. it comes from a breakdown in the
rules governing the interaction. Systemic corruption is when there are consist-
ent, expected demands for bribes for normal regular services (Tanzi 1998). It is
systemic when routine resources are scarce or strictly controlled and access to
them requires under-the-table and even sometimes overt, additional payment
to get goods through customs, or get telephone services or required permits.
Corruption is systemic when applicants for driver’s licenses, building permits
and other routine documents have learned to expect a ‘surcharge’ from civil
servants (Evans, n.d.). At a higher level, bribes are paid to win public con-
tracts, to purchase political influence (Tanzi 1998), to sidestep safety inspec-
tions, to bypass bureaucratic red tape and to ensure that criminal activities are
protected from interference by police and other criminal justice officials. All of
these acts or expectations are known to the public; to be systemic, corruption
must be perceived to be pervasive. Where institutions are weak, other contrasts
may emerge: a weak state may be vulnerable to illicit private pressures, while
weak property rights or civil societies might leave citizens vulnerable to official
demands (Rock and Bonnett 2004).

Sporadic corruption
As stated, sporadic corruption occurs irregularly throughout the political economic
system creating a degree of uncertainty as to its location and scale. For this rea-
son it negatively affects development by siphoning critical economic resources into
private hands (U4 2012). Sporadic corruption is selective but consistent, generally
within specific agencies or departments (Johnston 2005). In many instances sporadic
corruption is more closely tied to criminal activity rather than to routine, life-course
requirements for goods or services as is more characteristic of systemic corruption.
Sporadic corruption enables such things as drug and arms trafficking, gambling,
money laundering and other illegal activity, including organized crime, to function
(Griffith 1997). While a systemically corrupt society also enables some of these
activities, sporadic corruption can exist in an otherwise corruption-free society.
364 Qingli Meng and Paul C. Friday

These would be the mid-range corruption level countries identified by Transparency

International (2010) and those societies which Hao and Johnston (1995) referred to
as ‘influence markets’ with strong political and economic opportunities yet where
some corruption is still evident.

Incidental/opportunistic corruption
Opportunistic corruption is the everyday small-scale, bureaucratic or petty cor-
ruption that takes place at the practical end of politics – where the public offi-
cials interact directly with the public (U4 2012). Incidental or opportunistic
corruption is not part of the wider fabric of the society, nor is it organized. It is
committed by individuals on an irregular basis, depending upon the situation
or circumstances. Incidental corruption is often bribery in connection with the
implementation of existing laws, rules and regulations, and usually involves
modest sums of money (U4 2012); not all persons within a department or
agency are ‘on-the-take’; an example might be individual police officers taking
bribes to ‘look the other way’. Incidental corruption can be considered ‘doing
favours’ – often for ‘favours in return’ that may not involve money transactions.
Circumstances dictate the offering and accepting of bribes or other exchanges.
Prenzler (2002, p. 14) illustrates the difference between sporadic and incidental
corruption (although not using the same terminology) when he suggests that
officers in licensing or vice squads are more likely to engage in organized (spo-
radic) corruption while traffic officers are more likely to engage in opportunistic
corruption.

Victims of corruption
We have argued that corruption, like crime in general, has etiological roots on three
levels of analysis: structural, institutional and individual. Social structural forces
influence institutional socialization of individuals who bring their own individual
experiences into the equation to determine offending. We have also argued that
corruption as a phenomenon varies in intensity and pervasiveness across societies
where it is endemic or systemic in some societies, sporadic in others and purely
opportunistic in yet others.
The victims of corruption have been shown to be either individuals or the soci-
ety itself. From the perspective of the victim, we would like to add one additional
dimension, the dimension of tangibility. The victimization of corruption can be
either tangible (material – human and financial loss) or intangible (immaterial
or abstract, for example loss in trust and credibility). On the one hand, there is
financial harm or harms for which the victim can receive measurable compensa-
tion and on the other hand there is harm or damage that is more abstract and hard
to measure and which cannot be compensated for effectively, namely damage to
a person, agency or country’s reputation. This damage can be considered indirect,
intangible or non-pecuniary damage.
 Victims of corruption 365

Table 17.1 is a heuristic device we developed to illustrate our conceptual

framework. On the basis of general knowledge within the literature referenced
above and our own thoughts we offer a few examples of the nature of victimi-
zation within each intersection.

Structural-systemic corruption
The first intersection between the manifestation of corruption and level of vic-
timization is structural-systemic. In societies where corruption is systemic and
victimization is at the structural level, society is the primary victim. Victimization
is both tangible and intangible.
When corruption has become endemic or systemic the structure of and social
processes within that society are impacted. Public resources are allocated inef-
ficiently. At this level the resources are generally natural resources such as oil,
gas or coal that are basic to the economic wealth of a country. The existence
of an exploitable natural resource provides the opportunity for State authori-
ties, both administrative and political, to obtain payments. Secondly, the gen-
eral scarcity of public assets relative to demand, accompanied by policies of
fixed official prices, creates opportunities for informal rationing through bribery
(Dearden 2000).
Developing countries receive foreign aid to assist in development and the coun-
tries attempt to attract investors to maintain some balance of trade or commerce.
The entire political economy of a country is at stake and corruption at this level has
consequences for the country itself. If corruption is systemic/endemic the entire
society is victimized both economically and politically (U4 2012). An example of
the specific tangible victimization a society experiences from systemic corruption
is the cutting off or disappearance of the foreign aid it receives (Wei 2000; Lamb-
sdorff 2005) and the negative impact corruption has on Gross Domestic Product
per capita (Mo 2001; Méon and Sekkat 2005). Welsh (2004) argues that the public
is the victim in this sector when environmental safety is ignored, endangering the
entire population, for the sake of individual profit.
The benefits from corruption are likely to accrue to the well-connected at the
expense of the poor. The unequal distribution of wealth has led Guptae et al. (2002) to
argue that corruption increases income inequality as measured by the Gini coefficient.2
Gupta et al. (2002) argue that since corruption negatively affects economic growth, an
increase in corruption is associated with lower income growth of the poor.
These are tangible victimizations. An intangible or more abstract example of
the structural level victimization of systemic corruption is political instability (Mo
2001) that weakens the State’s legitimization (Robinson 1998). Systemic cor-
ruption undermines the fundamental goals of social and economic development
(Lambsdorff 2005) and perpetuates a culture of corruption. It is the ingrained
culture of corruption that thwarts anti-corruption (Persson et al. 2012) and conse-
quently a feature of this type of corruption is that it persists.
Table 17.1 Relationship of corruption manifestation and level of victimization – for illustrative purposes

How corruption manifests itself

Systemic Sporadic Incidental
(Cultural) (Selective but consistent) (Lower level participants)
Tangible Intangible Tangible Intangible Tangible Intangible

Structural Public resources are Perpetuates a Infrastructure Undermines

allocated inefficiently culture of (roads, bridges, Rule of Law
Foreign aid disappears corruption buildings) of Loss in predict
Environmental safety Undermines the inferior quality ability in doing
may be compromised fundamental goals of business
NOT APPLICABLE
Creates great income social and economic Undermines the
disparity between rich development value of honesty;
and poor Weakened State reduced con
Lower GDP legitimization fidence in the
Political instability system

Institutional Poor education, health Political and economic Selective agency Social trust, the Opportunities Disrespect
care and other services instability inefficiency trust and for select for the entire
Public services on which Good governance and – inefficient credibility of victimization agency e.g.
the poor depend are good public financial allocation of the institutions by police
starved of funds mgt. lost resources; lower suffer functionaries
Lost political credibility productivity Loss of State

LEVELS OF VICTIMIZATION
Opportunities for credibility
organized crime, Fundamental
drug/arms rights denied
trafficking

Individual Low standards of living, General population’s Economic costs Competent and Cost greater Unpredictability
poverty, high infant level of distrust rises transferred to honest citizens Frustration,
mortality Competent and individual feel frustrated anger
Poor health from unclean honest citizens feel Financial cost in
water or other frustrated proportion to
compromised resources income is great
 Victims of corruption 367

Structural-sporadic corruption
At the structural level society is also the victim when corruption is not endemic
but is concentrated in specific domains. Victimization in this sector (structural-
sporadic) is most often found in departments or agencies specifically involved
with the allocation of resources (Lambsdorff 2005, p. 10). Lambsdorff (2005)
suggests that those who allocate resources may have better opportunities to extract
illegal income from large investment projects than from small contracts. Evans
(n.d.) proposes that the process of public procurement gives wide scope for spo-
radic corruption (through paying bribes to secure contracts, overpriced contracts,
insider dealing, claiming payment for goods which have not been delivered, etc.)
He cites as an example (p. 11) that Tanzania gave a power contract to Malaysia
under which the government would have been locked into buying electricity at 2.5
times the price available from another supplier.
Tangibly, therefore, such corruption is evidenced in specific domains of the
corrupt agencies such as a poor infrastructure or poor quality public construction
projects and overpriced public services. Development in specific areas is thereby
thwarted.
It is more difficult to differentiate the intangible effects of sporadic from sys-
tematic corruption since both have similar effects on undermining morale and the
value of honesty and predictability in business dealings. When the corruption is
sporadic the public is never certain as to which segments of the system are corrupt
and thus confidence in the system as a whole is reduced.

Institutional-systemic corruption
When corruption is systemic the impact is felt throughout the entire society. It
was suggested above that at the structural level this involved malfeasance in the
allocation of resources, victimizing the society as a whole. To consider systemic
corruption at the institutional level we suggest that the resources involved are those
that are directly consumed by the public through governmental institutions. The
victims of corruption at this level are the institutions or agencies themselves. For
example, according to Mauro (1998, p. 263) ‘… predatory behavior by corrupt pol-
iticians distorts the composition of government expenditure. Corruption is found
to reduce government spending on education in a cross section of countries.’ He
also suggests that expenditures on health are also affected. These institutions do not
get the resources needed for quality service delivery due to the diversion of those
resources as a result of corruption. These are tangible victimizations. Looking at
the systemic corruption-institutional level intersection, if corruption is systemic, all
social institutions on which individuals rely are tangibly victimized, resulting in a
poor education system, inadequate health services, inadequate sanitation, contami-
nated water, poor roads and, in general, a breakdown in any government-provided
service where corruption exists.
368 Qingli Meng and Paul C. Friday

The intangible victimization effect, as noted by the United Nations (2001), is

that when public resources are allocated inefficiently, competent and honest citi-
zens will feel frustrated and the general population’s level of distrust rises. As a
consequence, the legitimacy of the political and economic order is undermined.
The United Nations (2012b) also states that while economic development
is stunted because foreign direct investment is discouraged (structural level
victimization), small businesses within the country (institutional level) often find
it impossible to overcome the ‘start-up costs’ required because of corruption and
the added costs imposed to access institutional services. For example, corruption
at this level was seen to reduce the credibility of politicians and political parties
in Costa Rica and corruption was considered a reason for the increased the levels
of abstentions in the election processes (Olaya et al. 2010). According to Olaya
et al., there were other negative political ramifications as a result of corruption at
this level. Their findings appear to be generalizable.

Institutional-sporadic corruption
Corruption victimization at the institutional level is not always pervasive; it can
be located in specific institutions on which the public depends. This is corruption
that affects, for example, a specific government department (Evans, n.d..); not all
government departments or agencies are corrupt.
There have been some examples of institutional-sporadic corruption in devel-
oped countries. One example is the US government being accused of outsourcing
many contracts without an open bid process. Hightower (2007) noted that:

An analysis by the Times found that more than half of their outsourcing con-
tracts are not open to competition. In essence, the Bushites choose the com-
pany and award the money without getting other bids. Prior to Bush, only 21
per cent of federal contracts were awarded on a no-bid basis.

Leigh and Evans (2006) reported in The Guardian that in the United Kingdom,
the arms manufacturer BAE was being investigated for bribing Saudi officials to
buy fighter planes. The New York Times has reported that Wal-Mart de Mexico
was an aggressive and creative corrupter, offering large payoffs to get building
permits where Mexican law otherwise prohibited such development (New York
Times 2012).
International institutions, such as the United Nations and World Bank, have
also come under criticism for corruption, ironically while presenting themselves
to be in the forefront of fighting against corruption. The example with the UN
was the oil for food scandal, where the headlines were about the corruption in
the UN. But, it was not the UN as an organization per se that was institutionally
victimized, but specifically the UN Security Council which was responsible for
the monitoring the blockade and where the US received kickbacks for corrupt oil
sales (Borger and Wilson 2005).
 Victims of corruption 369

There is no discernible pattern to which departments are more (or less) likely
to be corrupt, but when some departments are corrupt other departments become
tainted, decreasing the efficiency of that particular agency and increasing inse-
curity on the part of the population. This has been noted in societies where
the police, as an institution, has been considered corrupt (Prenzler 2002, 2009;
Punch 2009). Other agencies and departments can be viewed the same way,
resulting in selective agency inefficiency (tangible victimization) and the loss of
trust and credibility of those institutions (intangible victimization). Ultimately,
corruption of this type can lead to a loss of ability to govern adequately (Lamb-
sdorff 2005).
With sporadic institutional corruption, particularly if it involves the police,
comes the opportunity for organized crime to take hold. Drug and arms traf-
ficking and other forms of illegal supply and demand for services increase
when there is sporadic corruption (GAO 1998; Buscaglia and van Dijk 2003).
The prime minister of Albania (ranked by the World Bank as the most corrupt
country in Europe) has said that corruption within the police is in some cases
‘at the centre of organised crime’ (as cited in Evans n.d., p. 8). A police-organ-
ized crime connection increases the tangible costs to society as a whole and
to individuals and families as they pay the consequences of organized crime
operations. The affected institutions themselves are victims in an intangible
way because of the reduction in the public’s confidence and trust (La Porta
et al. 1997).

Institutional-incidental corruption
Regardless of the efforts made to cleanse institutions of corruption, the like-
lihood exists that individuals within some institutions may take advantage of
opportunities to be corrupt. This is small-scale and generally involves junior
public officials, such as individual policemen or customs officers with high lev-
els of discretion (Evans, n.d.; Myint 2000). Incidental corruption tangibly pro-
duces profound public alienation and distrust of the entire institution or depart-
ment; it has little macro-economic cost, but it is often hard to curb. This has
been termed the ‘rotten apple’ theory by the Knapp Commission in the US when
it studied police corruption in the 1970s (Sherman 1974). This is opportunistic
corruption within regulatory agencies where individuals have high levels of dis-
cretion without adequate accountability (Myint 2000; Buscaglia and van Dijk
2003). Intangibly, incidental corruption at the institutional level can result in
disrespect for the institution or agency in which some individuals are perceived
as being corrupt.

Individual-systemic corruption
Whether corruption is systemic, sporadic or incidental, individuals ultimately pay
the price. Corruption increases wealth for a few at the expense of society as a
370 Qingli Meng and Paul C. Friday

whole (structural victimization), leaving the poor (individual victimization) suf-

fering the harshest consequences (World Bank 2012a). The difference between
the way corruption manifests itself and individual victimization is a matter of
degree.
In societies characterized by systemic corruption there is a significant gap in
income and resources, resulting in high levels of poverty and low standards of
living (World Bank 2012b). The impact of corruption on health care and educa-
tion is especially strong. Gupta et al. (2001) show that countries with high levels
of corruption also have inefficient government services and low quality public
health care. Using child and infant mortality as well as the percentage of low-birth
weight babies out of total births as a proxy for the quality of public health care
and using student drop-out rates as a proxy for the quality of public education, the
authors found all these variables significantly related to levels of corruption. Child
mortality rates in systemically corrupted countries are about one-third higher than
in countries with low corruption; infant mortality rates and the percentage of low-
birth weight babies are almost twice as high; and dropout rates are five times as
high in countries with high levels of corruption (p. 139). Mauro (1998) found that
government spending on education as a ratio to GDP is negatively and signifi-
cantly correlated with corruption.
Other tangible victimizations at the individual level-systemic intersection are
evidenced by the number of countries receiving vast amounts of foreign aid that
never finds its way to fund the basic standards of living, clean water or adequate
housing for which it was intended. From the broadest perspective, corruption
distorts prices throughout the economy: the costs of bribes are passed onto the
final consumer. Corruption creates delays in economic transactions and additional
uncertainty (Dearden 2000). Myint (2000, p. 47) states that:

the burden of corruption falls more heavily on the poor as they cannot afford
to pay the required bribes to send their children to a decent school, to obtain
proper health care, or to have adequate access to government provided serv-
ices such as domestic water supply, electricity, sanitation and community
waste disposal facilities.

Corruption also hurts the poor directly because ‘it is an impediment to eco-
nomic growth, reinforces inequality, distorts public expenditure allocation
and through many other channels is an obstacle to poverty alleviation’ (World
Bank 2012b, p. 1).
Indirectly or intangibly, corruption has an impact on the individual’s view of
his/her society. Corruption distorts poor people’s relationships with and trust for
public officials, the police and people in authority who extort bribes from them
(World Bank 2012b). There also develops a general distrust within the population
that results in high levels of frustration.
 Victims of corruption 371

Individual-sporadic corruption
Individuals are also the victims when corruption is sporadic since the costs of
corruption are passed on to the individuals when they interact with the selected
agencies or institutions where corruption continues to have a foothold. The dif-
ference between individual victimization that is systemic and individual victimi-
zation that is sporadic is merely a matter frequency. The tangible and intangible
effects are the same for the individuals involved whether corruption is systemic or
sporadic. The difference is whether they are victimized by all agencies or services
or whether they are victimized by selective entities. If corruption is sporadic it
may cost more to get electricity or a telephone, for example (Olaya et al. 2010),
while there are no such ‘surcharges’ for other services.
The intangible victimization is related directly to the entity or agency that is
corrupt. If a policeman or teacher takes advantage of his position to extract bribes
it harms their reputation and relationship of trust, destroying social capital and
decreasing moral standards (World Bank 2012b). Sporadic but unpredictable
corruption leads to individual confusion, frustration and the loss of very limited
resources. A governance and corruption survey in Cambodia revealed that lower
income households on average spend 2.3 per cent of their income on bribes com-
pared to 0.9 per cent for rich households (World Bank 2000).

Individual-incidental corruption
It has been noted above that corruption frequently takes place in societies where
there is considerable discretion for public officials, limited accountability and
little transparency in governmental operations. Incidental corruption will occur
when individuals have considerable discretion and little accountability. It is not
possible to devise rules and regulations that are watertight and foolproof and will
take care of all contingencies that can arise in trying to control or direct an eco-
nomic activity (Klitgaard 1991). Hence, some flexibility and discretionary powers
will have to be given to administrators in interpreting and implementing rules.
Individual police officers, individual customs agents, individual administrators
may take advantage of their positions against unsuspecting individuals. There is
uncertainty and unpredictability on the part of individuals who are the victims
when corruption is incidental.

Synopsis and implications

Corruption is considered to be widespread but it varies significantly by country
and it manifests itself differently. We have tried to conceptualize corruption in a
way that enables better understanding of its impact; we have tried to present a
victimology of corruption. Corruption can be systemic to a society and when it is
there is widespread, consistent, predictable corruption throughout. This creates a
recognized if not accepted culture of corruption. It was pointed out that corruption
372 Qingli Meng and Paul C. Friday

could also be sporadic but not culturally pervasive. That is, corruption can exist
in some segments of a society and not in others. Victimization is different under
these conditions, as it is if corruption is opportunistic or incidental.
The impact of corruption can be found on three levels of society – the structure
and culture of the society itself, institutions within a society and above all, indi-
viduals. This chapter highlights the impact corruption has on each combination
and permutation of corruption manifestation and level of impact.
This is a heuristic exercise that suggests that while some may place the blame
of corruption on corrupt individuals, corruption is not possible if there is no insti-
tutional mechanism that makes it possible and that these institutions can, in fact,
be victimized by the same corruption they help to generate. Corruption is not a
matter of morals or the mere weakness of individuals in pursuit of personal gain.
We have tried to show that it can be cultural and systemic, creating an expectation
of corruption. The society itself is the victim of systemic corruption as critical
institutions are compromised and trust is lost. Of course, individuals at the lowest
economic levels suffer most directly.
We have highlighted a level of victimization not previously discussed: institu-
tions. To reduce the victimization of corruption to individuals and society, the
focus must be on the institutions that both enable it and which are also victimized
by it. Only individuals within institutions that condone, enable or ignore corrup-
tion engage in corruption. Systemic corruption undermines all social institutions,
including government. Poor education and health services are the result and both
the society and individuals within that society are the victims. Good governance
and good public financial management are lost when corruption is systemic. When
corruption is sporadic in some institutions, organized crime is enabled and can
flourish because critical institutions such as law and justice are compromised.
Our conceptualization of the dynamics and impact of corruption generates a
few suggestions for controlling it and assisting all levels of victimization. The first
is to correct the victimless misconception surrounding corruption. The primary
focus, however, needs to be at the institutional level. The United Nations (2001,
p. 8) offers the best set of recommendations: set basic democratic standards that
include political accountability and pressures against corruption. Their suggestion
to develop a strong civil society is seen as an important control on political cor-
ruption and each suggestion is at the institutional level including:

• free communications media

• public budget hearings;
• civil society control boards;
• public regulation commissions; and
• judicial monitoring systems.

Meng (2011, p. 185) makes a strong argument that corruption can be controlled
by professionalizing the public institutional sector. She argues that the more for-
 Victims of corruption 373

mal the institution, the less corruption there is likely to be. She suggests that it is
important to create an anti-corruption sub-culture (structural level) while at the
institutional level the following can reduce the level of corruption:

• set salary commensurate with responsibility. There is somewhat less corrup-

tion where civil servants are paid better, compared with similarly qualified
workers in the private sector (Van Rijckeghem and Weder 1997);
• increase the education level and the educational opportunities;
• upgrade and continue the education process and make the continuing educa-
tion mandated;
• improve quality through the recruitment level;
• create professional standards and clearly define the requirements for jobs; and
• establish a special committee to implement the professional standard in a
comprehensive and dynamic way.

Finally, Buscaglia and van Dijk (2003, p. 32) suggest that the following would
help to address and prevent both corruption and organized crime:

• a reduction of poverty levels and an increase in salary levels for public

employees, in order to hamper the uncontrolled growth of corruption, which
tends to increase political instability, which in turn stimulates the penetration
of the State by national criminal organizations or, worse, by transnational
ones;
• a reduction in the incidence and dimension of informal markets that provide
the economic input and output for organized crime;
• improvements in the distribution of income and wealth;
• a reduction of barriers to the international exchange of goods and services; and
• the adoption and more consistent application of financial regulations, which
could be enforced by specialized supervisory state agencies responsible for
financial investigations.

In sum we argue that corruption is not a victimless crime; individuals pay a direct
financial price and there is an indirect increased loss of confidence in their gov-
ernment and society. The society itself is a victim at one level where the rule of
law is subverted (United Nations 2012b), public participation is lost and resources
are diverted to personal gain. Institutions within the society can also be the victims
of corruption. Ultimately, individuals are clearly the victims and suffer because of
the graft, bribery and embezzlement whether corruption is systemic, sporadic or
incidental. Our conceptualization should help focus anti-corruption efforts where
corruption victimization is often overlooked and yet where anti-corruption prac-
tices may be the most effective – the institutional level.
374 Qingli Meng and Paul C. Friday

Notes
1 U4 Anti-corruption Resource Centre (U4) is a web-based resource centre for devel-
opment practitioners who wish to effectively address corruption challenges in their
work. Their aim is to provide users with relevant anti-corruption resources; including
their own applied research, publications, a helpdesk service and online training. See:
www.u4.no/
2 The Gini coefcient measures the inequality among values of a frequency distribution
(Gini, 1936). It is commonly used as a measure of inequality of income or wealth.

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Chapter 18

Reconceptualizing sexual
victimization and justice
Kathleen Daly

Introduction
The argument advanced here is based on two decades of researching and writing
on victims’ experiences in the aftermath of crime and their desires for justice. It
reflects my interests to move across the fields of domestic and international crimi-
nal justice, to understand diverse contexts of sexual victimization and to consider
the ways in which context matters for justice, from a victim’s perspective. I wish
to broaden the meanings of ‘justice’ for victims by identifying a wide range of
justice mechanisms, both in law and civil society and to devise a robust method
to assess and compare them. The Victimization and Justice Model presented here
encapsulates these themes with three components: justice mechanisms, victimiza-
tion contexts, and victims’ justice needs (or interests). Sexual victimization is my
focus, but the model has general applicability to serious crime.
I lodge the usual caveats about ‘victims’ (or a victimhood status). A victim status
is not fixed, but socially constructed, mobilized and malleable (Rock 2002); and
many prefer the term ‘survivor’. Further, we know that there are blurred bounda-
ries of victimization and offending (Daly 2010). Individuals have diverse experi-
ences of victimization, diverse demands for justice and multiple goals for justice,
which can change over time. There is no generic ‘victim orientation’ (Pemberton
et al. 2007) and ‘ideal’ victims are in short supply (Christie 1986). These caveats
can be stated more affirmatively. Victimization is a process, not a category or
identity; likewise, justice is a process, not an event or intervention. At the same
time, we require a word to refer to a person who has been victimized and ‘victim’
most readily comes to mind.
This chapter advances these arguments. First, government and civil society
politics often eclipse the mantra of evidence-based policy in criminology and this
problem is especially acute in addressing sexual victimization. I identify ways
forward, but recognize that my proposals will be controversial to some readers.
Second, the justice field needs a new way to depict and compare justice responses
and I propose using the terms conventional and innovative justice mechanisms.
The oppositional contrast of retributive and restorative justice was a ‘catchy expo-
sition’ (Roche 2007, p. 87) in its early years, but it should now be set aside. We
 Sexual victimization and justice 379

need a more sophisticated understanding of justice practices, not popular slogans.

Relatedly, the elements discussed in justice practices (e.g. reparation, restoration,
restitution, retribution and punishment) are defined and used differently, depend-
ing on the author; this must change if we are to build a scientific understanding
of conventional and innovative justice mechanisms. Third, researchers specialize
in one context of sexual victimization, but that context should be situated in a
broader field of reference. I introduce the Sexual Violence and Justice Matrix,
which arrays varied country contexts (developed and developing countries at
peace and in conflict zones) and victimization-offending contexts (individual,
institutional, organizational and collective) of violence. By giving attention to
different contexts of victimization, we can build a more systematic and stronger
empirical base on victimization and justice. Fourth, the justice field needs a better
measure of victims’ experiences of justice than vague notions of ‘satisfaction’ or
the ‘therapeutic effects’ of justice activities. I introduce the construct of victims’
justice needs (or interests), which can be used to assess and compare conventional
and innovative justice mechanisms from a victim’s perspective. The construct
also invites discussion and debate on normative questions of what victims should
expect in a justice activity.

Political context
The Victimization and Justice Model identifies the main components in the research
problem, which is to identify and compare justice mechanisms in responding to
sexual victimization in diverse contexts of violence. However, the research prob-
lem sits in a contentious political field. I outline its contours in broad-brush terms
with reference mainly to domestic contexts of criminal justice.
The response to rape and sexual violence seems to be contradictory: there is a
minimization of sex offending and victimization, on the one hand, and a demoni-
zation of certain groups as ‘sex offenders’, on the other. Victims’ rates of reporting
these offences to the police are low (14 per cent, on average, in five common law
jurisdictions from 1992 to the present; see Daly and Bouhours 2010, p. 572). Once
reported, levels of attrition are high as a case moves from the police, to prosecu-
tion and court adjudication. Of those cases reported to the police, the conviction
rate to any sexual offence is 12.5 per cent (1990 to 2005 data); but in an earlier
period (1970 to 1989 data), it was higher (18 per cent) (Daly and Bouhours 2010,
p. 597). Although an improved conviction rate should not be viewed as the only
goal of rape law reform, its erosion over time in the jurisdictions studied suggests
that we may have exhausted the potential of legal reform to effect significant
change.1
At the same time, the ‘sex offender’ continues to attract a high degree of social
outrage, exclusion and strong penal measures. This relatively small group has
been convicted of or imprisoned for sex offences, or has been suspected (or con-
victed) of particular types of sex offences (e.g. serial offending against children by
adults). Policies and practices vary by jurisdiction, but they include sex offender
380 Kathleen Daly

registries, community notification, preventive detention and GPS tracking. As

McAlinden (2007, p. 21) suggests, ‘the sex offender is demonised as a monster or
fiend and is singled out above other dangerous offenders in society’.
Although seemingly contradictory, the minimization and demonization of sex
offending are mutually reinforcing. Minimization occurs because most sex offend-
ing bears no relationship to the monstrous sex offender or to the less monstrous,
but no less atypical ‘real rape’ (that is, between strangers in a public place, with
visible injuries to a victim; see Estrich 1987); and because punitive penal measures
are not appropriate for many forms of sex offending (McAlinden 2007). Demoni-
zation occurs because ‘the sex offender’ is a convenient scapegoat for social fears
and vulnerabilities (Best 1990), which are amplified by sensational media stories
about highly atypical cases (Thomas 2005; McAlinden 2007). Although scholars
have analysed a societal obsession with ‘the sex offender’ and its negative effects
on society and criminal justice (Simon 1998; Zimring 2004), few have observed
how this phenomenon is linked to a minimization of sex offending and to debates
over what should be done about it. For some, the way to address minimization is
to ‘get tougher’ on sex offending by increasing the numbers of arrests, convictions
and sentences.2 The emphasis is on what I term symbolic justice: to send ‘strong
messages’ to would-be offenders that sexual offending will not go unpunished and
to vindicate victims by criminal justice responses. Others see the value of what I
term pragmatic justice (Daly 2011), which relies on multiple pathways of formal
and informal justice mechanisms, with an emphasis on victim participation.3 This
position recognizes that most victims will never see their case reach court and that
non-stranger sexual offending will continue to face hurdles in a legal process, no
matter how artful new legal language or procedures may be. The questions posed
by Hudson (1998) and myself (Daly 2002a) more than a decade ago remain apt:

How does one move away from punitive reactions, which – even when
enforced – further brutalize perpetrators, without, by leniency of reaction,
giving the impression that sexualized … violence is acceptable behaviour?
(Hudson 1998, p. 245)

How do we treat harms as ‘serious’ without engaging in harsh forms of pun-

ishment or hyper-criminalization?
(Daly 2002a, p. 62)

More recently, I have suggested these ways forward (Daly 2008, 2011; Daly and
Bouhours 2010):

1 Debate and clarify justice goals. It is imperative to clarify the goals for socio-
legal change: are they to increase arrests and convictions, impose more severe
sentences, validate victims, deter would-be offenders or change people’s behav-
iours and attitudes about gender and sexuality? For victim advocates and femi-
nist scholars, these questions remain unsettled and contested. Those emphasizing
 Sexual victimization and justice 381

symbolic justice are concerned that hard-won gains from criminal law reform will
be dissipated with ‘more lenient’ types of informal justice responses or apparently
lighter sentences. Debate can be difficult because we lack a common metric to
assess and compare justice mechanisms. I argue for a pragmatic justice position,
which proposes the next four points.
2 Focus on early stages. For criminal justice responses, emphasize the early
stages of the justice process, rather than the last stage of trial. For the period
of time preceding or leading up to criminal justice responses, the early phase
is crucial: it is when victims first disclose offences to people they know and
perhaps then to authorities; and it is when suspects are first interviewed and
investigations are conducted.
3 Do not rely solely on criminalization and penal strategies. Increasing
criminalization and penalization will not help most victims. Greater attention
should be given to responses that are more socially inclusive and re-inte-
grative of offenders. Mechanisms should be considered to encourage more
admissions to offending (only when it has occurred, of course) in legal or
non-legal settings. Such admissions need not necessarily to be tied to convic-
tions for sexual offences.
4 Lift the bans on sexual offence eligibility for informal justice mecha-
nisms. Although informal justice mechanisms, such as conferences or media-
tion, are used in some jurisdictions for admitted youth and adult offenders
(see Daly 2011, 2012), policymakers are wary of supporting them because
they may appear to be ‘too lenient’. However, the trade-off is not between
a ‘more’ or ‘less serious’ response, but between any response or none at all.
Careful introduction of justice mechanisms can be monitored and researched;
and from this, an evidence base can be built.
5 Identify a menu of options. There should be a menu of options for victims,
including those that do and do not articulate with criminal justice. Responses
can run on multiple pathways, not just one pathway of formal criminal jus-
tice. Informal justice processes can occur in many socio-legal contexts (e.g.
instead of reporting an offence; after charges are withdrawn by the police or
prosecutor or dismissed in court; parallel with a court process, at sentence,
post-sentence and post-release) and organizational contexts (e.g. government
agencies and the non-government sector).

Other scholars have argued for using innovative responses to sexual violence
(see for example Koss 2006; McAlinden 2007; Madsen 2008; Jülich 2010; Jülich
et al. 2010; Naylor 2010; McDonald and Tinsley 2011; McGlynn 2011; Pali and
Madsen 2011; McGlynn et al. 2012). This is encouraging, but a consideration of
new justice ideas cannot be confined to just one context of violence (an individual
hurting or harming another) in developed countries at peace.4 With increasing
attention to sexual victimization and justice in post-conflict societies, it is impor-
tant that theory and research in domestic contexts inform developments in interna-
tional or transitional contexts and vice versa (McEvoy 2007). The two are rarely
382 Kathleen Daly

analysed together (but see Waldman 2007; Boesten 2010), despite the recognition
that the handling of rape cases in the International Criminal Court shows patterns
similar to those in domestic courts (Mertus 2004).
The Victimization and Justice Model was developed to address the research
problem, but it cannot easily alter the politics of rape and security, which range
wildly between ignoring or doing nothing for most victims and ostracizing a small
number of offenders. Victimology has a central role to play in challenging this
situation by lowering the political heat, crossing the boundaries of domestic and
international criminal justice and encouraging citizens and governments to think
more deeply and constructively about the problem.

Victimization and Justice Model

Justice mechanisms
For some time, I have been critical of the oppositional contrast of retributive and
restorative justice (Daly and Immarigeon 1998; Daly 2000, 2002b). This contrast
has created obstacles for understanding what is and what could be optimal justice
practices. Rather than review older arguments, however, I want to persuade you
of the value of using new concepts.
I propose that we view justice mechanisms as residing on a continuum from con-
ventional to innovative. The categories of conventional and innovative are over-
lapping; they are not mutually exclusive and can be combined in hybrid forms.5
Conventional responses are concerned with improvements to evidence gathering,
prosecution and trial, and support for victims in legal contexts. They may be part
of a criminal justice system or work alongside of it. Most assume reliance on for-
mal legality, with a focus on prosecution, trial, and sentencing. Other conventional
responses include victim impact statements, specialist courts, civil litigation, state-
based compensation or financial assistance, victim advocates and victim lawyers.
Innovative responses may work alongside of or be integrated with criminal justice,
be part of administrative procedures, or operate in civil society. They include medi-
ated meetings or conferences of victims and offenders; informal justice mecha-
nisms; truth-telling or truth-seeking; reparations packages having material elements
(compensation, other forms of assistance) and symbolic elements (apologies, days
of remembrance, and memorials); people’s tribunals, documentary and street theatre
and other types of art and activist projects in civil society.6
There are advantages to conceptualizing justice responses in this way. First,
when viewing conventional and innovative responses as residing on a con-
tinuum, not as fixed or oppositional, we can recognize their dynamic qual-
ity, capacity for change, and interdependence. Second, we see that innovative
responses are a broad set of justice mechanisms of which restorative justice is
just one type. One reason why restorative justice is hard to define is that the term
contains a diverse set of agendas, principles and practices: it is often used as an
 Sexual victimization and justice 383

umbrella concept for any justice activity that is not a standard form of criminal
justice. I am proposing that ‘innovative justice’ be used instead, as an umbrella
concept, to contain a variety of justice mechanisms,7 which may provide more
openings for victim-defined participation and voice in justice activities. These
may be part of a legal process, reside in civil society or be a combination of the
two. I would emphasize that conventional mechanisms have equal importance
and standing. Although prosecution and trial were not designed with victims’
interests in mind, there have been improvements, particularly in providing some
degree of participation for victims in a legal process. Conventional criminal
justice cannot be disparaged as the ‘bad’ or ‘punitive’ justice, as often happens
when restorative justice advocates compare retributive and restorative justice.8
Rather, the theoretical and empirical tasks should be to determine the degree
to which conventional and innovative justice mechanisms can address victims’
justice needs or interests.

Key terms
If we are to build an empirically informed knowledge on conventional and inno-
vative justice mechanisms and what they can (or cannot) achieve, we require
some agreement on how to define and use key terms such as reparation, resto-
ration, restitution and the like. Currently, there is no such agreement (see Daly
and Proietti-Scifoni 2011).9 Writers attribute different meanings to these terms,
depending on their frame of reference and whether they are working in domestic
or international criminal justice. The problem is even more acute in domestic
criminal justice because the aim by some is to identify a new ‘system’ of justice.
By contrast, in international criminal justice, a conventional mechanism of adju-
dication and punishment of offenders is a remedy distinct from that of repara-
tion to victims. In an early collection on restorative justice in domestic settings,
Harland (1996, p. 507) observed that the field should ‘define and clarify the
most essential aims and related mechanisms, beginning with restoration itself
[but also] reconciliation, reparation to the community, mediation ... and so on’.
His call for an authoritative glossary of key terms for domestic criminal justice
has largely gone unanswered.
Those of us researching conventional and innovative justice mechanisms
should reflect on the varied uses of key terms, within and across domestic
and international criminal justice. Some translational work will be necessary
because we are working in different contexts of victimization, with different
types of justice mechanisms and legal conventions. An example of this endeav-
our is Clamp and Doak’s (2012) analysis of the ‘portability’ of restorative jus-
tice to transitional justice contexts. What would be useful is an Oxford English
Dictionary-style publication, which traces the development and evolution of
key terms. Consistency for its own sake is not the goal. Rather, it is to build a
solid and defensible theoretical and empirical literature, which requires shared
understandings of the terms used.
384 Kathleen Daly

Contexts of victimization
Most of us carry out research on victimization and justice with one context of vic-
timization in mind. This is reasonable, but it is important to situate the work in a
wider field of reference. I devised the Sexual Violence and Justice Matrix to array
varied country contexts (developed, developing, at peace or conflict/post-conflict)
and offending-victimization contexts of violence (Table 18.1). The three country
categories reflect differing legal, economic and political capacities to respond to
sexual victimization, along with differences in social organization and cohesion
for countries in conflict or relative peace. The offending-victimization contexts
are individual (row 1); organizational – i.e. a person using a position of organi-
zational power (row 2); institutional – i.e. within a closed institution (row 3) or
symbolically closed community (row 4); and collective – i.e. by loosely organized
gangs or quasi-state combatants (row 5). The matrix identifies differing social
relations and place elements, along with a broader political-economic context of
violence.10 Each cell identifies typical relations and places of victimization, along
with the problems that victims face in seeking justice. Although not itemized,
each cell may also use or have available differing types of justice mechanisms.
In general, one matrix cell – A1, an individual context in developed country at
peace – dominates the landscape of thought. An individual context of violence is
an individual hurting or harming another person outside an institution or without
using a position of organizational power. If you are sexually victimized in an A1
context, the standard advice is to ‘call the police’ and mobilize criminal law and
criminal justice, although, as we know, most victims do not do so.
In other contexts of sexual victimization, the situation is more difficult. I have
in mind assaults in total institutions – for example detention centres, prisons,
training schools, orphanages, military organizations (row 3); in racially or reli-
giously segregated enclaves in urban areas or in remote indigenous settlements
(row 4); and in war and conflict zones (column C). Reflect on being a victim in
these contexts. What are your options? Calling the police and mobilizing criminal
law may not be optimal, feasible or desirable. Our research of 19 major cases
of institutional physical and sexual abuse of children in Australia and Canada
(cell A3) shows that although some victims did make complaints to people in
authority, including the police or government officials, no legal action was taken
(Daly 2014). Their stories were ignored or disbelieved and investigations were
dropped or did not result in laying charges. It took, on average, nearly 40 years for
an official response to be initiated, using a conservative measure. Official reac-
tions occurred after pressure was placed on governments or churches by victims’
groups and the media, law suits against governments or churches and, at times, the
charging or conviction of perpetrators.
In an Australian case that came to public attention in April 2012 in Melbourne,
the clergy sexual abuse of young people was linked to higher than average rates
of suicide. A Catholic Church Archbishop was quoted as saying that the ‘“great
majority” of victims did not want to go to the police. … Obviously the church has
Table 18.1 Sexual violence and justice matrix, A and C country contexts (B country
contexts, developing country at peace, excluded)

Offending-victimization Country A Country C

context of sexual Developed country at peace Conflict, post-conflict, or post-
violence authoritarian regime
(1) Person acting alone A1 C1
Relations: peer, familial, known, Relations: peer, familial,
and (atypically) stranger relations known, and (atypically)
Place: mainly residential stranger relations
Problem: must fit ‘real rape’ Place: mainly residential
template (stranger relations, Problem: must fit ‘rape as
injury) weapon of war’ template

(2) Person using position A2 C2

of organizational Relations: religious, medical, or Relations: foreign
authority state official (e.g. clergy, doctor, peacekeepers, aid workers,
police) and child/adult victim and soldiers, in addition to A2
Place: residential and Place: residential and
occupational occupational
Problem: trusted person or state Problem: legal jurisdiction,
official is the abuser police or peacekeeper is the
abuser, zero tolerance policy

(3) Person using position A3 C3

of organizational Relations: religious or state Relations: state official having
authority inside closed official having duty of care and duty of care and
institutions (includes child/adult victim refugee/prisoner
peer Place: residential schools, prisons, Place: refugee camps and
relations in detention centres, armed forces detention centres, in addition
institutions) facilities to A3
Problem: trusted person or state Problem: official is the abuser,
official is the abuser, unable to unable to escape, inmate code
escape, inmate code of silence of silence

(4) Offending in A4 C4
symbolically closed Relations: peer, familial, and Limited documentation; but
communities known relations relations, place, and problem are
Place: remote communities or likely similar to A4.
segregated urban enclaves
Problem: fear and negative
community consequences of
disclosing; unable to escape

(5) Offending by loosely A5 C5

or well-organised Relations: gangs, criminal Relations: gangs, state or
groups enterprises, human trafficking quasi-state combatants, militia,
groups armed forces
Place: residential and Place: everywhere
occupational Problem: scale of mass violence,
Problem: serious reprisals by civilian terror, no security
offenders if reported, presence, fear and negative
repatriation to home country consequences of disclosing
386 Kathleen Daly

to … walk with victims, but it is always to the extent to which they will let us,
you see. That is the challenge’ (McKenzie et al. 2012, p. 2).11 If reporting offences
to police authorities is not desirable or optimal for many (or most) victims, we
should consider: what other justice options are available?12
Most research on sexual victimization and justice centres on cell A1, although
more is emerging in C5 (collective contexts in countries in conflict or post-con-
flict) and, to a lesser degree, A2 (clergy abuse outside a total institution). Research
and policy will improve when greater attention is paid to the specificity of victimi-
zation context and especially how context matters for justice from a victim’s per-
spective. Otherwise, responses and justice practices generated from A1 contexts
will be misapplied to other contexts. Here, the recent work by transitional justice
scholars, who are calling for a better understanding of ‘justice from below’ is rel-
evant (Lundy and McGovern 2008; McEvoy and McGregor 2008). Their research
is challenging a ‘top-down’ rule of law perspective (i.e. international criminal
law), which announces particular recommendations and unrealistic goals. The
problem, in part, is that those victimized have few options, no voice and limited
participation in justice agenda-setting; and in part, human rights advocates and
organizations use a highly westernised individualized concept of crime and jus-
tice, with a focus on ‘legalism’ (Weinstein et al. 2010). Translating this into the
vernacular of the Sexual Violence and Justice Matrix, justice responses that may
be appropriate to an A1 individual context are being wrongly applied to C5.13

Victims’ justice interests

For some time, I have been conducting research that seeks to compare conven-
tional and innovative justice responses to sexual violence and to assess the mer-
its of innovative justice responses, from a victim’s perspective. For example, I
have compared outcomes of youth sex offence cases that went to court and to
conferences (Daly 2006) and presented case studies of the experiences of sexual
assault victims who participated in conferences (Daly and Curtis-Fawley 2006).
An important intervention was a critique of my research by Cossins (2008), who
said that I did not provide sufficient evidence for my conclusion that conferences
offered more for sexual assault victims than did court. In my response (Daly
2008), I said that Cossins had provided no evidence that court processes were bet-
ter than conference processes from a victim’s perspective. Our exchange reveals
the state of ‘debate’ in the field: it was stalled because we did not have a common
metric to compare justice mechanisms.
The problem is profound. We have no robust method of determining what is or
is not an effective justice mechanism from a victim’s perspective. We cannot assess
the merits and limits of any one conventional or innovative mechanism nor can we
make comparisons between them in a systematic way. There are some exceptions.
For example, research carried out by the Justice Research Consortium randomly
assigned burglary and robbery victims to court only or to court and a supplemental
conference (Sherman et al. 2005; see also Shapland et al. 2011). This was a rand-
 Sexual victimization and justice 387

omized field experiment, and it is one way to make comparisons. However, field
experiments are expensive and have their own problems of sample selection bias.14
With some exceptions, research on conventional and innovative justice responses
relies on general measures of victim satisfaction or with elements of procedural
justice (e.g. being treated with respect, being listened to). For satisfaction, the dom-
inant question in victim studies is: ‘How satisfied were you …?’ or ‘To what extent
were you satisfied?’ with a particular justice activity. This is despite the fact that
most of us would say that the satisfaction variable is overly simplified, ambiguous
and largely uninterpretable (Pemberton and Reynaers 2011, pp. 238–239).
Some researchers have used behavioural or psychological measures such as the
frequency of apologies and their perceived sincerity by victims in court and sup-
plemental conference practices (Sherman et al. 2005). These measures are more
concrete than ‘satisfaction’, but they centre solely on the psychological benefits of
justice activities for aiding victims’ recovery from crime. Pemberton et al. (2007)
have outlined several types of social-psychological measures to assess reductions
in anxiety and anger for victims participating in restorative justice processes. Erez
et al. (2011) have applied ideas from therapeutic jurisprudence to assess victims’
experiences with criminal justice. In my view, therapeutic jurisprudence offers a
limited range of options for victims: it centres on legal mechanisms and what legal
actors do, and it uses satisfaction as a key measure. Furthermore, what is ‘thera-
peutic’ or ‘anti-therapeutic’ lacks specificity. For example, in Erez et al. (2011),
the term ‘therapeutic’ refers to any activity that is ‘helpful’ for victims.
A radical reconceptualization is required. Rather than asking, ‘are victims satis-
fied with a justice mechanism?’, ‘are they more satisfied with one than another?’
or ‘do they receive greater psychological or therapeutic benefits from one than
another?’, we should ask instead, does a justice mechanism have the capacity
to address one or more of victims’ justice needs (or interests) and to what extent
does it do so? The construct of victims’ justice interests contains some elements of
procedural justice (i.e., aspects of participation and voice; see Tyler 1990; Wem-
mers 2010), but it encompasses more than respectful and fair treatment. It also
includes validation, vindication and offender accountability. These five elements
– participation, voice, validation, vindication and offender accountability – have
been identified by others in the domestic criminal justice and transitional justice
literatures as important to victims’ sense of justice (e.g. Herman 2005; Koss 2006;
Henry 2009; van der Merwe 2009; Auckland University of Technology Centre of
Restorative Justice 2010; Backer 2012). My contribution is to give the construct
greater weight and definitional precision, and to use it to assess and compare con-
ventional and innovative justice mechanisms.
Contrary to those who focus on social-psychological effects of justice mecha-
nisms, I believe that we should distinguish victims’ justice needs (or interests) in
a justice activity from the effects of that activity for changing psychological states
(for example, for reducing victims’ anger and fear or increasing self-esteem). It is
important to separate these ‘two logics’ (van Stokkom 2011, pp. 209–211). A vic-
tim’s justice need (or interest) is concerned with the legitimacy of a legal or justice
388 Kathleen Daly

element in its own right, independent of its emotional or psychological impact on

a victim’s well-being. This is where I am critical of therapeutic jurisprudence as
applied to crime victims: it jumps too quickly to consider the consequences of law
and justice activities without first asking, what principles or entitlements should
we, as victims and citizens, expect from justice? Although I welcome research on
the psychological impact of justice mechanisms, there needs to be prior considera-
tion of what the optimal justice elements should be, from a victim’s perspective.
The term ‘victims’ justice needs’ is more often used in the literature (e.g. Koss
2006; van der Merwe 2009) than is justice interests. To me, needs connotes a psy-
chological requirement, whereas interests connotes a victim’s standing as a citizen
in a justice activity, a connotation I prefer.15 For now, I use the two interchange-
ably, although my preference leans to justice interests. The major elements of the
construct are as follows.

1 Participation. Being informed of options and developments in one’s case,

including different types of justice mechanisms available; discussing ways to
address offending and victimization in meetings with admitted offenders and
others; and asking questions and receiving information about crimes (e.g. the
location of bodies, the motivations for an admitted offender’s actions).
2 Voice. Telling the story of what happened and its impact in a significant setting,
where a victim/survivor can receive public recognition and acknowledegment.
Voice is also termed truth-telling and can be related to participation in having a
speaking or other type of physical presence in a justice process.
3 Validation. Affirming that the victim is believed (i.e. acknowledging that
offending occurred and the victim was harmed) and is not blamed for or thought
to be deserving of what happened. It reflects a victim’s desire to be believed
and to shift the weight of the accusation from their shoulders to others (family
members, a wider social group, or legal officials). Admissions by a perpetra-
tor, although perhaps desirable to a victim, may not be necessary to validate a
victim’s claim.
4 Vindication. Having two aspects of the vindication of the law (affirming
the act was wrong, morally and legally) and the vindication of the victim
(affirming this perpetrator’s actions against the victim were wrong). It requires
that others (family members, a wider social group, legal officials) do some-
thing to show that an act (or actions) were wrong by, for example, censuring
the offence and affirming their solidarity with the victim. It can be expressed
by symbolic and material forms of reparation (e.g. apologies, memorialization,
financial assistance) and standard forms of state punishment.
5 Offender accountability. Requiring that certain individuals or entities ‘give
accounts’ for their actions (Stenning 1995). It refers to perpetrators of offences
taking active responsibility for the wrong caused, to give sincere expressions
of regret and remorse, and to receive censure or sanction that may vindicate
the law and a victim.
 Sexual victimization and justice 389

Victims’ justice needs differ from survival or coping needs (e.g. for safety, food,
housing, counselling), service needs (e.g. for information16 and support) and
violence prevention. All are relevant and some have greater priority than others,
depending on the victimization context. For example, studies of severely disad-
vantaged groups in post-conflict societies show that for many survivors, food and
housing are of more immediate importance than ‘justice’ (Robins 2011).17 Like-
wise, in familial- or residential-based contexts of victimization, safety may be of
more immediate importance.
‘Victims’ justice needs’ (or interests), as defined here, is an emergent and untested
construct. Members of my project team and I are operationalizing the meaning of
each element in analyses that apply the construct to real cases and victims’ experi-
ences. As this work progresses, definitions of each element may require modifica-
tion. However, the construct offers a promising way to assess and compare conven-
tional and innovative justice responses to crime. We know that such responses have
different aims, limits and potentials – a crucial, if overlooked, fact when efforts are
made to compare their strengths and limits. For example, a conventional mecha-
nism of the criminal trial was not designed primarily to address victim participation,
voice or validation. In contrast, an innovative mechanism of mediated meetings or
conferences of victims and admitted offenders was designed to enhance victim par-
ticipation and voice, but it may be inadequate for addressing other justice needs.
There is more work to be done in applying the idea of victims’ justice interests.
My first step is to apply it retrospectively to data and cases I have already gathered to
determine how to operationalize each of the elements. What I envision is that we can
build a solid body of evidence about the strengths and limits of justice mechanisms
because we have a common metric. In attempting to apply the idea, we may find that
other elements should be added, or that other types of refinements are required. In
doing so, we can engage in a normative discussion about the standing and interests
of victims as citizens in justice activities. I have avoided the term ‘victims’ rights’
for practical and political reasons. It gets caught up in a zero-sum game discussion
of the entitlements of alleged offenders and victims in a legal process, and it invites
conjecture on ways to balance these rights in an ideal justice ‘system’ (Cape 2004).
My goal is more modest, at least initially: it is to address a problem I faced several
years ago in the exchange between Cossins and myself on the relative merits of court
and conference processes in responding to sexual violence. We could not engage in a
meaningful debate because there was no common ground, no common metric. With
the construct of victims’ justice interests, we can begin to redress that problem.

Conclusion
In this chapter, I have called for a reconceptualization of sexual victimization and
justice, working within and across domestic and international justice fields. I reit-
erate the key points. First, for politics, while we might wish that research evidence
can trump ideology and prejudice, this is naïve for offences falling under the rubric
of ‘sex crime’. These offences are minimized or not addressed for most victims
390 Kathleen Daly

and they are demonized for a relatively small group of offenders. The political
and media construction of sex offending and victimization has served to stymie
discussion on rational and constructive change. Second, for research, we must get
our conceptual house in order, as much as this is possible in light of working in
new and expanding fields of knowledge. If we want to improve victims’ standing
and options in the aftermath of crime, we need a stronger evidence base. That
requires a more coherent use of key concepts and more sound ways of depicting
justice mechanisms that operate within, alongside or outside a legal process in
civil society. Third, for research, we must respect the boundaries of domestic and
international or transitional justice because each works in different victimization
contexts and on different problems of justice for victims. For example, transi-
tional justice is concerned with state building, economic development and social-
political transformation whereas domestic criminal justice is not.18 However, there
are points of overlap in studies of sexual victimization in countries at peace and
in conflict zones. Furthermore, we might imagine that a justice mechanism that is
used in one context of victimization could be adapted to another context, which
could, in turn, expand the repertoire of justice options for victims. Finally, for
research and policy, it is time to say goodbye to ‘satisfaction’ as the measure of
justice for victims. We can and must do better. I propose a new way to assess and
compare justice mechanisms, which can further our research and understanding of
victims’ experiences in seeking justice. There is much work ahead.

Notes
1 Overall conviction rates declined in England and Wales, Canada and Australia, but
not in the United States or Scotland; on average, rates range from 10 to 14 per cent
(except Scotland, whose rates are 16 to 18 per cent). Research in civil law jurisdictions
nds greater variability: from 4 and 8 per cent in Belgium and Portugal, respectively,
to 18 and 23 per cent in Austria and Germany, respectively. These percentages are of
2004–2005 cases in a project headed by Lovett and Kelly (2009). By ‘overall convic-
tion rate’, I mean the percentage of cases resulting in conviction (by plea or at trial) to
any sexual offence of those reported to the police.
2 A ‘get tough’ stance is particularly focused on adults who sexually victimize children,
‘as political parties vie for ever more punitive sanctions’ (McAlinden 2007, p. 15).
3 McGlynn (2011, pp. 840–841) traces how these concerns unfolded in England and
Wales in 2011 with a proposed sentencing discount for offenders who pleaded early to
sex offences; she demonstrates the divisions among symbolic and pragmatic feminist
positions, as I dene them here.
4 The proposed ways forward, listed above, were written with this one context in mind;
and they are likely to require revision for other contexts.
5 With respect to ‘large-scale state-based conict’, Aertsen (2008, pp. 413–434) sug-
gests that differing types of justice mechanisms – ‘informal, formal, and in-between’
– needed to be ‘combined in a exible way’. It is important that conceptual understand-
ings of justice in both domestic and transitional justice contexts begin to appreciate the
strengths of hybrid mechanisms.
6 These activities, although ‘outside law’, may use legal formats (e.g. popular tribunals,
see Chinkin 2001). Examples of documentary theatre and art and activist projects are
given in Buikema (2012) and Simi (2010), and are particularly visible in transitional
justice contexts.
 Sexual victimization and justice 391

7 I am interested in identifying and researching justice mechanisms, not a ‘justice system’

or a ‘type of justice’ (e.g. transformative justice).
8 I would be less concerned if people used the terms ‘conventional’ and ‘restorative’
justice. My point is that it is inappropriate to characterize the entire apparatus of con-
ventional criminal justice as ‘retributive’; and in addition, retribution has value as a
justice aim.
9 These ideas are developed in Daly and Proietti-Scifoni (2011) and glossed here. The
problem is not that people do not dene terms (although many do not), but rather that
they seem to be unaware of how others have dened them or used them in empirical
research.
10 The matrix’s rows and columns could be expanded considerably (or sub-divided fur-
ther) as researchers identify where their research sits in the matrix and how it is further
inected by differing cultural meanings.
11 There was mounting pressure from mid-2012 in Australia to address complaints of sex-
ual abuse by clergy associated with Catholic and other churches in Victoria and New
South Wales, which resulted in the Prime Minister’s announcement on 12 November
2012 of her recommendation to create a Royal Commission. On 11 January 2013, the
Governor-General issued Commonwealth Letters Patent for a Royal Commission into
Institutional Responses to Child Sexual Abuse, appointing six commissioners and its
terms of reference.
12 I am concerned with proposals for mandatory reporting of sexual abuse because this
may not be desirable for many victims.
13 An example of misapplication is the common recommendation given by international
NGOs to address sexual violence in developing countries in conict or post-conict.
The advice is to use conventional forms of criminal justice, in particular, to implement
international legal protocols and conventions, and to strengthen and enforce domestic
criminal justice (Daly and Dalsgaard 2010).
14 An example is the Justice Research Consortium London Experiment (Sherman et al.
2005, p. 377). For each eligible case, an offender was rst invited to participate; and if
the offender agreed, then the victim in the case was invited. In the burglary experiment
59 per cent of victims consented to participate (from a set of 78 per cent of offenders
who agreed to participate); and in the robbery experiment 52 per cent of victims con-
sented to participate (from a set of 83 per cent of offenders). Overall, then, 46 and 43
per cent, respectively, of victims in eligible burglary and robbery cases self-selected in
the project. The victims who opted in were then randomly assigned to participate in a
supplemental conference (or not) pre-sentence. This protocol is undoubtedly appropri-
ate from an ethical point of view. However, Sherman et al. (2005) then compare the
orientations of this group of victims on such items as feeling ‘forgiveness’ towards an
offender with the victims in the Re-Integrative Shaming Experiments (RISE). RISE
victims had no choice to opt in (or not) to RISE because the process was entirely based
on offender admissions before a random allocation of cases to a diversionary confer-
ence (or court). Thus, we might expect that the two groups of victims would be quite
differently oriented towards the two types of justice activities, a fact that Sherman et
al. (2005) do not consider.
15 My thanks to Robyn Holder, who suggested that justice ‘interests’ may be preferable
to ‘needs’.
16 Service needs for information can be distinguished from the role of information in
victim participation in that the latter assumes a more active role for a victim to choose
among several justice options.
17 Similar items have been proposed by transitional justice scholars (Backer 2012; Sonis,
as summarised in van der Merwe 2009, p. 128). They consider not only victims’ justice
interests, but also societal reconstruction and transformation. Backer’s ‘justice index’
has twelve elements: ‘awareness/acknowledgment, voice, truth, admission/account-
392 Kathleen Daly

ability, apology, liability/punishment, reparation, non-repetition, restoration, develop-

ment, redistribution and transformation (socio-political)’. Sonis’ ‘justice scale’ was
developed to assess victims’ views of the South African Truth and Reconciliation Com-
mission; it has eight elements: ‘voice, punishment, truth, accountability, acknowledge-
ment, nancial restitution, apology, and transformation’. Aertsen (2008, pp. 435–440)
identies these elements as important in responding to large-scale violent conict:
‘identity, dignity, truth, restoration, and justice’.
18 Of course, some argue that domestic criminal justice should be concerned with social
and political transformation, with ‘social justice’ as the goal, but here I am comparing
the standard aims and objectives of the two.

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Index

9/11 attacks 110 attitude 34

‘Aunty Yan’ 247, 248, 250–1, 252, 254–6,
Abdulaziz Al-Nasser, Nassir 91 257
abertzale left (leftist Basque parties) Australia 110–11, 117, 118, 119–20, 121,
326–7, 328–9, 336 124–5, 126
acknowledgement of criminal guilt 238–9 Aylwin, Patricio 233–4, 238
activist victims 15, 18–19, 25
ADHD (Attention Deficit Hyperactivity Backer, David 172–3
Disorder) 303 Bali bombing (2002) 110–11
advanced parole 152 Balza, General Martín 239
Aertsen, I. 288 Bámaca Velázquez v. Guatemala (2000)
African victims of colonialism 89–95, 241
96–100 Barnard, Dianne Kohler 78
Alfonsín, Raúl 234 Barrios Altos v. Peru (2001) 241–2
Alien Torts Claims Act (1789) 93 Basoglu, Metin 176
Allende, Salvador 230 Bayzler, Michael 92
‘ambiguous wording’ (of EU directives) 62 Berkeley Human Rights Centre 166, 171,
amnesties 162, 172–3, 178, 193 220, 221
Anderson, Benedict 248 Blackstone, William 24
Antilla, Inkeri 17 ‘blameless’ victims 116–17
anxiety 301–2, 306, 310, 313–14, 318–19 Boers, K. 169
apartheid 93, 188, 235 Bohm, David 198
appraisal respect 33–5, 36–7, 43, 44–5 Bosnia-Herzegovina 165–8, 177, 218–20
‘appropriation’ 175 Bottoms, A. 33
Arbour, Louise 165 ‘bottom-up’ victim perspectives 217
Arendt, Hannah 161, 178 Bradford, B. 285
Argentina 228, 229, 233–6, 239 Brazil 69–70
Arrizabalaga, Professor Iñaki García 331 bribery 355, 357, 358, 359, 362–5, 370–1
art 194, 195–6 Brief Symptom Inventory 269
Artha Sastra (ancient Indian law) 72 British Crime Survey (2010–2011) 14–15
Asociación de Familiares de Detenidos Brooks, R. 163–4, 337
Desaparecidos (Chile) 233 Brougham, Henry 25
 Index 397

Bunyoro people (Uganda) 94 Clark, Janine Natalya 167

Burundi 173–4 Clarke, D. 282
Buscaglia, E. 373 class 26
Code of Practice for Victims of Crime
Cambodia 171, 221–3, 247–59, 314 (2006) 21–2
Campbell, T. 18 collective reparations 215–16
Canada 111, 117, 118, 119–20, 121–2, colonialism: and human rights abuses
124–5, 126–8 89–95, 96–100; and reparations for
Canuto, M. 288 African victims 89–91, 92–5, 96–100;
Carmona, Teresa 75 and slavery 91–2; and victims’ rights in
Carnegie Endowment for International NICs 72, 74, 77, 78, 81
Peace (1998) 163 common law jurisdictions 23–4
Carothers, Thomas 163–4 compensable losses/injuries 117–20
Case Manager Project (Netherlands) 312 compensation: characteristics of national
Center for Advanced Study (Cambodia) schemes 113–25; and compensable
221–2 losses/injuries 117–20; and
Central African Republic 171 compensation function 121–3; and
Central American Court of Justice 95 ‘criminal injury’ 114–15; and criminal
Centre for Integral Development (Ecuador) justice systems 105, 107, 109, 116,
185 124–5; and development of victims’
Cheyre, General 238 rights 66, 67; and eligibility 116–17; and
child mortality rates 370 empathy 112; European Union provision
child victims: and criminal justice systems 106–8, 112–13, 115–20, 122, 128; as
311–13; impact of crime on 301–6; form of reparation 214,
legislation on 300; needs of 306–13; 219–20, 221, 239, 240; justification
and PTSD 302–3, 309–11, 313–14; for state schemes 111–13; and liberal
and risk of crime 300; and stress ideology 105, 124; and offenders’
301–4, 305, 310–11, 313–14; and rights 105, 116–17; and ‘rebalancing’
trauma 301–3, 305–6, 309–11, 313–15, 105, 124; ‘rights’ to 123–5; and social
319; and victim support services 311, justice 112–3, 122; and sympathy 112;
313–19; and victimization 300, 301, and terrorism victims 105, 109–11,
305–7, 311–12, 315, 318, 319 122, 124; and trauma 115; and trust
Chile: and criminal justice 240–2; and 112, 124–5; and victimization 105, 111,
development of transitional justice 116; and victims’ rights in NICs 69, 70,
228–30; human rights abuse victims 71, 73, 74–6, 79, 80, 81; and ‘violent
230–3, 234–7; and reparations 239–40; crime’ 114–15; US provision 108–9,
transitional justice study 228–30, 233–43 112, 114–16, 118, 121, 122–3, 124, 125,
China 71, 82 129–30; see also reparations
Ching, Tao Te 201 Compensation for Crime Victims (leaflet)
Christie, Nils 116, 170 109
‘civic trust’ 112, 124–5 ‘compensation mechanisms’ 71, 106–7, 113
civil remedy surrogate system 114, 119–20 ‘competitive grief’ 14
civil rights 68 CONADEP (Argentinean National
Civil Rights Act (1964) 154 Commission on the Disappearance of
Clamp, K. 383 Persons) 234–6
398 Index

constitutions 69, 70, 74–8, 79, 80 11–12, 16–17, 19, 21, 24–6, 32; and
‘continued presence’ 150 victims’ rights in NICs 71, 74, 78–9
Convention on the Compensation of Criminal Law (China, 1997) 71
Victims of Violent Crime (1983) 106, Criminal Procedure Code (China, 1996) 71
107, 117, 118–19 critical victimology 14
Convention on the Non-Applicability of cross-border cases 56–7, 60
Statutory Limitations (1968) 240 CrPC (Criminal Procedure Code of India)
conventional justice mechanisms 378, 382, 72–4
383, 386–7 cuddly toy support figures (child victims)
corruption: conceptual framework 359–64; 316–17
costs of 356–9; defining 357; in cultural justice (dimension of integral
developing countries 357–8; extent of justice) 191, 194–6
355–6, 371–2; manifestation of 356–9, Cyr, K. 286, 289, 290
362–4; and organized crime 358,
363, 369, 372, 373; reducing 372–3; Daly, K. 288
and victimization 359–62, 364–72; Danegeld 19
as ‘victimless crime’ 359, 372, 373; Darwall, S. 33, 34
victims of 364–71 Dayton Peace Agreements (1995) 218
Corruption Perceptions Index 356 De Mesmaecker, V. 291
Cossins, A. 386 decision making procedures (procedural
Costa Rica 360 justice model) 279, 280–1, 286–7, 291
Council Directive 2004/80/EC (2004) defining ‘victims’ 12–14, 230, 378
106–8, 113, 116, 118, 120 democracy 163, 228–9, 230, 252–3, 259
Council of Europe Recommendation Democratic Republic of Congo 171, 172,
(2006) 58 193, 216
Cowan v Le Tresor Public (1989) 113 demonization of ‘sex offenders’ 379–80, 390
Criminal Injuries Compensation Authority devictimization 322, 333, 335, 340–1
17, 23, 109 diffuse victimization 334, 336
‘criminal injury’ 114–15 DINA (Dirección de Inteligencia Nacional)
criminal justice systems: and access to 234
information 281–2; and child victims disrespect 35–6
311–13; and compensation 105, 107, Doak, J. 383
109, 116, 124–5; and development of domestic violence 20, 116
victims’ rights 67; and ETA study 332, Domestic Violence, Victims and Crime Act
333, 339; and EU action on victims’ (2004) 20, 21
rights 52, 53–6, 59–61, 63–4; and Downes, David 17, 24
integral justice 186–7; and procedural DSM (Diagnostic and Statistical Manual of
justice model 277; and respecting Mental Disorders) 266
victims 33, 34, 40, 42–3; and sexual Duerr, Hans-Peter 198
victimization 379–83; and transitional Duff, Antony 41, 42
justice 240–2; and victim concerns Dunn, Peter 19
277–9, 281–2, 291; and victim impact ‘duty to understand’ 33
statements 283–5, 292; and victim–
offender mediation 287–8, 291, 292; Eagan, Judge Claire V. 155
and victimology 212; and victims’ rights Easwaran, E. 201
 Index 399

ECCC (Extraordinary Chambers in the European Crime and Safety Survey (2005)
Courts of Cambodia) 221–2, 247–8, 57
249, 253–4 European Union compensation provision
Eckhart, Meister 202 106–8, 112–13, 115–20, 122, 128
ecological justice (dimension of integral Evans, B. 367
justice) 191, 196–8 Evans, R. 368
‘Eco-Spirituality’ 200 ‘extraordinary justice’ 165
Edgar, A. 284 extra-territorial jurisdiction 145
EEOC (Equal Employment Opportunity
Commission) 150, 154–5 ‘failed states’ 163, 249, 250, 254
Einstein, Albert 199 fairness 279–81, 285–6, 287, 288, 290
El Salvador 193–4, 236 false claims to victimhood 237
Elias, R. 112, 169 Farmer, Lindsay 24
Elworthy, Scilla 199 Fassin, Didier 175
‘emancipation’ of victims 32 Fattah, Ezzat 168–9, 170, 174
EMDR (Eye Movement Desensitization federal certification 152–3
and Reprocessing) 311 Federal-Provincial Task Force on Justice
empathy: and compensation 112; and for Victims (Canada) 13, 19–20
respecting victims 33, 37–8, 39, 40–1, feminism 11, 13, 14, 20, 380–1
43, 45; and restorative justice 40–1; and FEMM Committee 54
victimization 40, 43, 45; and victims’ financial/material consequences of crime
rights 40–1, 45 (child victims) 304
‘encounters to repair victims’ 325–6, 334, FLSA (Fair Labour Standards Act) 155
336 Folger, R. 280, 289
Englebrecht, C. 284 forgiveness 173–4, 177, 325–6, 330–1,
‘equality of arms’ 24 336–8, 339
Erez, E. 285, 387 ‘four worlds’ perspective 190, 192
ETA (Euskadi Ta Askatasuna): and Framework Decision on the Standing of
compensation 109; comprehensive Victims in Criminal Proceedings (2001)
law models 330–2; fatalities data 19, 51–3, 54, 55, 58, 62–4
323–4, 333; and restorative justice Francis of Assisi, Saint 200
322, 323–6, 328, 330–41; and Franco, Francisco 323
Spanish legal system 327; and Frank, C. 79
transitional justice model 327–30; Frankl, Victor 184, 202, 203, 205–6
and victimization 322, 325, 326–7, Frazier, P. 269
329–30, 333–6, 338–41 Fry, Margery 67
EU action on victims’ rights: and criminal future control 268–70
justice systems 52, 53–6, 59–61, 63–4; GAL (Group of Anti-Terrorist Liberation)
EU Directive (2011) 19, 51–2, 53–7, 328–9
58–64; Framework Decision (2001) Gandhi, Mahatma 206
19, 51–3, 54, 55, 58, 62–4; Treaty of Garzón, Judge Baltasar 93
Lisbon (2007) 51, 53, 54; and victim gender equality 254
support services 57–61 genocide 91, 93, 99, 177, 211, 223, 254
EU Directive on Victims’ Rights (2011) German–Polish Convention (1922) 95–6
19, 51–2, 53–7, 58–64, 300 Ghafar, A. 75
400 Index

Gini coefficient 365 victims 230–3, 234–7; and human

Glencree Initiative (Spain) 332 trafficking 140, 143, 148, 155; and
Global Horizons Inc. (farm labour mass victimization 211; and social
contractor) 155 reconstruction 163; and transitional
Gottschalk, Marie 25 justice 161, 162, 165, 168, 175; and
Graf Dürckheim, Karlfried 184, 202, 203, victimology 211
204 Human Rights Act (1998) 20
Gray, David 165 Human Rights Watch (NGO) 76, 78
Great Britain 109, 111, 112, 117, 118–20, human trafficking: current US trends
121–2, 125, 128 141–2; data on 140, 141–2, 143; harm
Groenhuijsen, M. 211, 215 reduction approach 141; and human
guarantees of non-repetition 214, 239, 240 rights abuses 140, 143, 148, 155; and
Guardian (newspaper) 368 immigration 144, 147–9, 150–2; legal
Guatemala 193, 241 framework of 142–6; misconceptions
Guidelines on Justice for Child Victims surrounding 141; and slavery 140;
and Witnesses of Crime (2005) 300 state responses to 146, 147; survivors’
Guiding Principles for a Model of the End assistance programmes 149–55; and
of ETA without Impunity (2010) 327 trauma 151; typology of victims 146–9;
guilt, feelings of 302, 308, 312 UN protocols on 140, 142–4; victim
Gupta, S. 365, 370 protection approach 141
Gutto, S. 91 Hussin, N. 74, 75

Hague Conventions 96, 98–9 Ibn ‘Arabi 200–1

Hao, Y. 364 ICTY (International Criminal Tribunal for
‘hard law’ 51, 52, 53, 63 the Former Yugoslavia) 99, 165–7
Harland, A. 383 ‘ideal’ victims 116
harmfulness 33, 42–4 ILAS (Instituto de Salud Mental y
hate crime 13 Derechos Humanos) 233
Henríquez, Cardinal Raúl Silva 231–2 ‘imaginary’ of transitional justice 247–59
Herero people (Namibia) 94 imagined communities 248
‘hero/heroine’ status of victims 36, 44, ‘immaterial loss’ 118, 120
183–4, 185 immigration 144, 147–9, 150–2
Herrington, Lois 11 implementation of EU directives 62–3
Hightower, J. 368 In my Own Way (book) 204
Hodzic, Refik 167–8 incidental corruption 362–3, 364, 366, 369,
Holocaust 12, 202, 239, 337, 340 371
Holstein, J. 14 India 71–4, 82
HSI (Homeland Security Investigations) indirect victimization 334, 336
142, 143 individual level victimization 361–2, 366,
HTRS (Human Trafficking Reporting 369–71, 372
System) 144–5 individual reparations 215–16
Hudson, B. 380 individual-incidental corruption 371
human rights abuses: accounting for individual-sporadic corruption 371
victims 234–7; African victims of industrial victims’ rights 68
colonialism 89–95, 96–100; Chilean ‘innocent’ victims 116–17, 124
 Index 401

innovative justice mechanisms 378, 382–3, Khmer Rouge Regime (Cambodia) 221–2,
386–7 247, 250–6, 314
institutional level victimization 361, 366, KID (Khmer Institute of Democracy) 247,
367–9, 372 250, 252–3, 254–5, 258–9
institutional-incidental corruption 369 Kleinman, Arthur 169, 174–6
institutional-sporadic corruption 368–9 Kleinman, Joan 174–5
institutional-systemic corruption 367–8 Klitgaard, R. 357
integral justice: and criminal justice systems Knapp Commission (US) 369
186–7; dimensions of 191, 193–200; Knaus, Gerald 167
and ‘hero/heroine’ status of victims KRT (Khmer Rouge Tribunal) 247–8, 249,
185; nature/characteristics of 190–2; 253–6, 257
and perpetrators’ transformation 205–6; Kulkarni, Anu 172–3
and religion 194, 196, 199–201; and
spirituality 198–204; and transformation Lambsdorff, J. 367
of victims 202–4; and transitional justice Lawrence, Stephen 20
185–6, 189, 192, 193, 194–6, 200, 206; lawyers 24
and trauma 183, 187, 189, 202, 204, 205; leadership 183–5
value of 189–90, 206; and victimization Leebaw, Bronwyn 164
185; and victimology 185, 189, 193, 200, Leferink, S. 286
206; and victims’ rights 205, 206 legal aid 153–4
Integral Vision, Integral Spirituality and legal consequences of crime (child
Integral Psychology (book) 190 victims) 305
International Centre for Transitional legalism 162, 163–4, 168–70, 174, 175
Justice (New York) 220 legislation protecting victims’ rights: and
International Crime Victim Survey (2007) 54 criminal justice systems 52, 53–6,
International Criminal Court 162, 172, 59–61, 63–4; EU Directive (2011)
205, 211, 215, 216–17 19, 51–2, 53–7, 58–64; Framework
International Labour Organization 96, 140 Decision (2001) 19, 51–3, 54, 55, 58,
International Prize Court (1907) 95 62–4; Treaty of Lisbon (2007) 51, 53,
Israel 109–10 54; and victim support services 57–61
It is difficult to get it out of my head (book) Leigh, D. 368
300 Lemert, Edwin 15
Lens, K. 284, 286, 287
Janoff-Bulman, R. 266–7, 268 Leopold II, King (Belgium) 91
Jeldres, Julio 252 Lessem, Ronnie 190, 192
Jerin, R. 67 Letschert, R. 216
Jin, G. 71 liberal ideology 105, 124
John Pickle Co. (oil industry parts Liberia 171, 195
manufacturer) 155 Lind, E. 279, 280, 281
Johnston, M. 364 ‘logotherapy’ 202
Joutsen, Matti 13 London bombings (2005) 109, 122
just world theory 35–6 LRA (Lord’s Resistance Army, Uganda)
Justice Research Consortium 386 172, 220
402 Index

Maasai people (Kenya) 94 National Commission on Political

Maharaj, Nisargadatta 204 Imprisonment and Torture (Chile) 239
Mahidol, B. 79 Nazism 93, 184, 202, 205–6
Mainwaring, S. 228 Nee, A. 173–4
‘Maji Maji rebellion’ 94 Netherlands 63–4
Malaysia 74–5, 82 Nettelfield, Lara 167
Malimath Committee (India) 72 neuropsychological consequences of crime
Mandela, Nelson 36, 183–4, 185, 197–8 (child victims) 305–6, 319
Mani, R. 194–5 ‘Never Again’ (military document) 238–9
Manusmriti (ancient Indian law) 72 New York Times (newspaper) 368
marginalisation of victims 11 NICs (newly industrialized countries):
Margolis, H. 361 Brazil 69–70; China 71, 82; India 71–4,
‘Martens Clause’ (in Hague Conventions) 82; Malaysia 74–5, 82; Mexico 75–6;
98–9 Philippines 77–8, 81–2; South Africa
mass victimization: Bosnia-Herzegovina 78–9, 82; Thailand 79, 82; Turkey 80;
study 218–20; Cambodia study 221–3; victims’ rights in 68–82
psychological impact of 212–13; and Nigeria 360
reparations 210, 211, 212, 213–24; non-bailable crimes 70
and reparative justice 210–11; Serbia Northern Ireland 109
study 218–20; and transitional justice NOVA (National Organization for Victim
210–11; Uganda study 220–1; and Assistance) 15
victimology 211–13, 215, 223 Nozick, R. 43
‘material loss’ 118, 192, 197
Mau Mau people (Kenya) 94 OAS (Organisation of American States)
Mauro, P. 361, 367, 370 232
McAlinden, A. 380 Obama, Barack 155
mediation 71, 169, 277, 287–91, 292 ‘Obamacare’ 121
Medina, Admiral José Toribio 233 Offen, Bernard 337
memory preservation 234, 235, 237–8 offender accountability (victims’ justice
Meng, Q. 372–3 needs) 388
Messmer, H. 289 offenders’ rights 105, 116–17, 124
Mexico 75–6 Office for Terrorism Victims (Spain) 325,
Miers, D. 112 328, 332
Mikaelsson, J. 106 Oklahoma City bombings (1995) 110
Miller, G. 14 Olaya, J. 360, 368
Milosevic, Slobodan 205 online interventions 265–6, 271–5
MoD (Ministry of Defence) 94 ‘ordinary justice’ 168
moralization gap 44 Orentlicher, Diane 166
Myint, U. 370 organized crime: and corruption 358, 363,
369, 372, 373; and ETA study 325; and
Nagy, R. 164, 327 human trafficking 142–4, 155; in NICs
Nandi people (Uganda) 94 75
National Association of Crime Victim OVC (Office for Victims of Crime) 108,
Compensation Boards (US) 109 110, 115, 122–3
 Index 403

overprotection 313–14 positive focus (child victims) 309–10

Owen, R. 312 Pot, Pol 221
Poulson, B. 290
parental support (child victims) 313–14 pragmatic justice 380, 381
Paris Peace Agreement (1991) 221, 252 Prenzler, T. 364
Parker, L. 76 present control 268–70, 271–5
participation (victims’ justice needs) 388 private prosecutions 24–5
Partido Popular (Spanish political party) procedural justice: and decision making
325 procedures 279, 280–1, 286–7, 291;
past control 268–70 and ETA study 327, 330, 332; quality
paternalism 39, 40 of treatment 280–1, 285–6, 290–1;
Paternoster, Raymond 164 and sexual victimization 387–8; and
PCOSES (Perceived Control Over victim concerns 279–82; and victim
Stressful Events Scale) 270, 273, 274 impact statements 277, 282–7, 292;
Peace Committee (Chile) 231–2 and victimization 277, 281, 289; and
PEDS (Paediatric Emotional Distress victim–offender mediation 277, 287–91,
Scale) 310 292; and ‘voice’ 279–80, 281, 283–5,
peer support (child victims) 315–6 288–90
Pemberton, A. 387 Property Tax and Compensation Fund Law
Pennebaker, James 266 (Israel) 110
perceived control over traumatic events: psychological/emotional impact of
developing control 270–1; online victimization 212–13, 278, 301–3
interventions 265–6, 271–5; and PTG (Post Traumatic Growth) 309
present control 268–70, 271–5; and PTSD (post-traumatic stress disorder): and
self–blame 266–7, 268, 269; and stress child victims 302–3, 309–11, 313–14;
268, 271, 272–4; temporal model of and perceived control over traumatic
control 268–70 events 265, 266, 270, 271, 272; and
Peru 235, 237, 241–2 transitional justice 172, 175
Pesantes, Judge Salgado 241 public apologies 188, 192, 219, 221, 337
pets 316–17
Pham, P. 222 quality of treatment (procedural justice
Philippines 77–8, 81–2 model) 280–1, 285–6, 290–1
physical consequences of crime (child
victims) 303–4, 318 racism 92–4
Pickett, K. 322 radical criminology 14
PIDEE (La Fundación Protección a la rape victims 266–8, 269–70, 380
Infancia Dañada por los Estados de ‘reactive victim scapegoating’ 169–70
Emergencia) 233 Reagan, Ronald 17, 67
Pinochet, General Augusto 93, 231–2, ‘real rape’ 380
233–4, 238 ‘rebalancing’ 105, 124
Polaris Project (NGO) 146, 147 Rebuilding Lives: Supporting Victims of
police investigations 61 Crime (White Paper, 2005) 16
political reconstruction 229 reckless behaviour 302
politico-legal justice (dimension of integral recognition respect 33–5, 36–7, 41, 43,
justice) 191, 193 44–5
404 Index

‘recovered memory’ 13 of victims’ rights 66, 67; as form of

‘recovery’ 332 reparation 214, 219–20, 239; and
recovery process awareness (child victims) victims’ rights in NICs 71, 72, 74, 78,
310–11 79, 80
recovery time/space (child victims) 307, ‘restoration’ 332
318 restorative justice: and African victims
‘redacted narratives’ 249 of colonialism 97; and development
Reeves, Helen 19 of victims’ rights 66; and empathy
rehabilitation 214, 239, 325, 327, 332, 334, 40–1; and ETA study 322, 323–6, 328,
336 330–41; and sexual victimization 378,
Reiner, Robert 26 382, 383; and transitional justice 164;
‘relational PTSD’ 313–14 and victim–offender mediation 287–91,
religion 194, 196, 199–201 292; and victims’ rights in NICs 71, 79
REMHI (Recovery of Historical Memory) retributive justice: and development
193 of victims’ rights 66; and sexual
reparations: access to 213–17; and victimization 378, 382; and transitional
African victims of colonialism justice 161, 162, 166, 169, 170, 177
89–91, 92–5, 96–100; Chilean study Reyes, M. 337
239–40; collective measures 215–16; Roberts, J. 283, 284
development of concept 95–6; and Rogers, L. 285
ETA study 325, 329, 330, 332, Rome Statute (1998) 162, 212, 240
334–7, 338, 340; forms of 213–15, rule of law 163–5
239–40; individual measures 215–16; Rwanda 171, 213
judicial measures 216–17; and mass
victimization 210, 211, 212, 213–24; Samburu people (Kenya) 94
non-judicial measures 216–17; and Samii, Cyrus 173, 174
transitional justice 161, 165, 170, Samoei, Koitalel arap 94
239–40; victim perspectives on 217–23; Sanguinetti, Julio María 233
see also compensation Sanguinetti, Raúl 234
reparative justice 188–9, 210–11, 217 ‘satisfaction’ 214, 239, 387, 390
‘resilience’ 332 Schafer, S. 67
respecting victims: and appraisal Scheeringa, M. 313–14
respect 33–5, 36–7, 43, 44–5; and Schieffer, Alexander 190, 192
criminal justice system 33, 34, 40, Schiller de Kohn, Vera 183, 184–5, 203
42–3; defining ‘respect’ 32–3; and school support (child victims) 315
development of victims’ rights 32; and ‘secondary victimisation’: and criminal
disrespect 35–6; and empathy 33, 37–8, justice systems 212, 215; and defining
39, 40–1, 43, 45; and harmfulness 33, ‘victims’ 13; and development of
42–4; and recognition respect 33–5, victims’ rights 11; and ETA study
36–7, 41, 43, 44–5; and sentencing 43; 325–6, 327, 330, 340–1; and victim
and sympathy 33, 38–40, 43, 45; types identity 15; and victims’ rights in NICs
of respect 33; and victimization 33–45; 78
and wrongfulness 33, 41–5 self-blame 266–7, 268, 269
restitution: and African victims of self-efficacy 270, 273, 274
colonialism 96–7, 99; and development self-expression (child victims) 306–7
 Index 405

September 11th Victim Compensation spirituality 198–204

Fund 110 sporadic corruption 362, 363–4, 366, 367,
Serbia 218–20 368–9, 371
Sessar, K. 169 Sri Lanka 194
‘sex offenders’ 379–80, 390 Stockholm Programme (2010) 107
sexual victimization: and defining Strang, H. 40, 287–8
‘victims’ 378; and justice mechanisms stress 268, 271, 272–4, 301–4, 305,
378–9, 382–3, 386–8, 390; political 310–11, 313–14
context 379–82, 390; and Sexual structural level victimization 360–1,
Violence and Justice Matrix 379, 365–7, 372
384–6; and Victimization and Justice structural-sporadic corruption 367
Model 378, 379, 382–90 structural-systemic corruption 365
Sexual Violence and Justice Matrix 379, structure/routine (child victims) 307–8
384–6 ‘Super Great Leap Forward’ (Cambodia)
Shapland, J. 288–9 247
Shapo, M. 110 ‘survivors’ 12, 378
Shaw, R. 177 Sweeting, A. 312
Sherman, L. 40, 287–8 symbolic justice 327, 380, 381
Shirk, D. 76 symbolic measures 210, 213–14, 220, 240
Sicilia, Javier 75 sympathy: and compensation 112; and
Sierra Leone 177 respecting victims 33, 38–40, 43, 45;
Sihanouk, King Norodom 252 and victimization 38–40, 43, 45
Skinner, E. 268 systemic corruption 355, 358, 362, 363,
slavery 91–2, 140 365–6, 367–8, 370, 372
‘social harm’ 66–7, 336, 338
‘social imaginary’ 248 Taj Mahal Palace (Mumbai) 111
social justice 112–3, 122 Task Force on Victims of Crime (1982) 11,
social reconstruction: Bosnia-Herzegovina 15–16, 67, 108, 112
study 166–8, 177; and human rights Task Force on Victims’ Rights and the
abuses 163; and international norms Justice System (1991) 14
165; and therapy 174–6; and transitional Task Forces on Human Trafficking 141–2
justice 162–3, 176–8; and victimology Taylor, Charles 205, 248
163, temporal model of control 268–70
168–71; and victims’ attitude studies 171 terrorism victims: and compensation 105,
social/behavioural consequences of crime 109–11, 122, 124; and ETA study 322,
(child victims) 304–5 325–7, 329–30, 333–6, 338–41
societal justice (dimension of integral TF-CBT (Trauma Focused Cognitive
justice) 191, 193–4 Behaviour Therapy) 311
Solzhenitsyn, Aleksandr 184, 196 Thailand 79, 82
Sommer, H. 110 The Men Who Killed Me (book) 213
South Africa 78–9, 82, 235, 238 therapeutic jurisprudence 40, 279, 330,
Spain 109; see also ETA (Euskadi Ta 332, 387, 388
Askatasuna) ‘therapeutic justice/victimology’ 176
spiritual justice (dimension of integral Theresa of Avila, Saint 201
justice) 191, 198–200 Thibaut, John 279
406 Index

Thiruvalluvar 72 Transparency International (NGO) 355–6,

‘Three Strikes’ law 169 364
Tobolowsky, P. 66 trauma: and child victims 301–3,
‘top-down’ victim perspectives 217 305–6, 309–11, 313–15, 319; and
Trafficking Victims Protection Act (2001) compensation 115; developing control
141 270–1; and human trafficking 151;
Trans Bay Steel Inc. 155 and integral justice 183, 187, 189, 202,
transformation of victims 183–5, 202–4 204, 205; online interventions 265–6,
transitional justice: accounting for victims 271–5; perceived control over 265–75;
234–7; and amnesties 162, 172–3, and present control 268–70, 271–5; and
178, 193; attitude of victims 171–4; rape victims 266–8, 269–70; and
Bosnia-Herzegovina study 165–8, 177; self-blame 266–7, 268, 269; temporal
and Cambodia study 247–59; Chilean model of control 268–70; and
study 228–43; and context 162; and transitional justice 163, 168, 169–70,
criminal justice systems 240–2; and 171–3, 174–6,
democracy 163, 228–9, 230, 252–3, 259; 251–2; and victim identity 15; and
development of 228–30; and ETA study victims’ rights 15, 16
327–30; and human rights abuses 161, Treaty of Berlin (1878) 100
162, 165, 168, 175; ‘imaginary’ of Treaty of Lisbon (2007) 51, 53, 54
247–59; and integral justice 185–6, Treaty of Versailles (1919) 95
189, 192, 193, 194–6, 200, 206; and Treisman, D. 360
international norms 163–5; judicial trials: and EU action on victims’ rights 56,
mechanisms of 162–3, 171–2, 173, 61–2; and integral justice 192; Khmer
174, 175; ‘lacunae’ of 187–9; and Rouge Tribunal 247–8, 249, 253–6,
legalism 162, 163–4, 168–70, 174, 175; 257; and transitional justice 162–3,
and mass victimization 210–11; and 167–8, 172–3, 176, 177–8; and victims’
memory preservation 234, 235, 237–8; rights in NICs 72, 73, 74, 76–7, 78, 80
normative dimension of 249, 254, 255, Trindade, Judge Cançado 241
257; and political reconstruction 229; trust 112, 124–5
and reconciliation 242; and reparations Trust Fund for Victims 216–17, 223
239–40; and reparative justice 188–9; truth commissions: and Chilean study
and retributive justice 161, 162, 166, 234–5, 236–7, 238, 242; and reparations
169, 170, 177; and rule of law 163–5; 216–5; and transitional justice 161, 162,
and sexual victimization 383, 386, 163, 170, 173, 174, 175, 177–8, 186,
389; and social reconstruction 162–3, 188
176–8; tensions within 161–2, 177; and truth-telling 210
therapy 174–6; and trauma 163, 168, Turkey 80
169–70, 171–3, 174–6, 251–2; and T-Visa classification 150–2
trials 162–3, 167–8, 172–3, 176, 177–8; TVPA (Trafficking Victims Protection Act,
and truth commissions 161, 162, 163, 2000) 143–4, 145–6, 149–53
170, 173, 174, 175, 177–8, 186, 188; TVPRA (Trafficking Victims Protection
‘victim’ figure within 230, 235–7; and Reauthorization Act, 2005) 144, 146,
‘victimhood’ 161, 162, 163, 169–70, 150, 152
174, 237; and victimology 163, 168–71, Tyler, T. 164, 279–80, 281
176 Tzu, Lao 201
 Index 407

Uganda 171, 172, 220–1 Victim Compensation Act (Thailand, 2001)

UN Declaration of Basic Principles of 79
Justice for Victims of Crime and Abuse victim concerns 277–82, 291
of Power (1985): and development victim identity 14–16
of victims’ rights 67–8; and EU Victim Support (England and Wales) 12,
action on victims’ rights 57; and mass 15, 16
victimization 212; and nature of rights Victim Support (Europe) 19
19; and transitional justice 168; and Victim Support (Netherlands) 63, 312
victim identity 12–13; and victims’ victim support services: access to
rights in NICs 71, 72–3 information 60; access to support
UN Palermo Convention 142, 143–4 59; child victims 311, 313–19; and
UN Reparation Principles (2005) 168, 212, EU action on victims’ rights 57–61;
213, 221, 239 individual assessments 60; minimum
UN Smuggling Protocol (2000) 140, 142 service requirements 59–60; and
UN Trafficking Protocol (2000) 140, 142–4 procedural justice model 285–6; and
uncertainty 280 victims’ rights in NICs 69
‘Uncle San, Aunty Yan, and the KRT’ ‘victim therapy’ 174
(booklet) 247, 248, 250–9 Victim’s Charter (South Africa) 78–9
‘Uncle San’ 247, 248, 249, 250–9 ‘victimagogic programmes’ 25
uncontrollability 266–7 ‘victim-blaming’ 17
universalistic caring 340 ‘victimhood’ 161, 162, 163, 169–70, 174,
Upanishads (ancient Hindu texts) 201 237
Uruguay 228, 229, 233–4 victimization: and appraisal respect 33–5,
USA 108–9, 112, 114–16, 118, 121, 122–3, 36–7, 43, 44–5; and child victims
124, 125, 129–30, 141–56 300, 301, 305–7, 311–12, 315, 318,
Uvin, P. 173–4 319; and compensation 105, 111, 116;
U-Visa classification 151–2 and corruption 359–62, 364–72; and
Uwakwe, V. 360 empathy 40, 43, 45; and ETA study 322,
325, 326–7, 329–30, 333–6, 338–41;
validation (victims’ justice needs) 388 and harmfulness 42–4; and human
van Boven-Bassiouni Principles 168 trafficking 141, 147–8; and integral
Van Camp, T. 290, 291 justice 185; levels of 359–62, 366,
Van den Bos, K. 280 372; mass see mass victimization; and
Van Dijk, Jan 25, 169–70, 172, 373 perceived control over traumatic events
Vanfraechem, I. 288 265; and procedural justice model 277,
Varela, Francesco 198–9 281, 289; psychological/emotional
Varna system (India) 72 impact of 212–13, 278, 301–3; and
VAWA (Violence Against Women Act, recognition respect 33–5, 36–7, 41, 43,
2005) 151 44–5; and respecting victims 33–45;
Veil, Simone 184 sexual see sexual victimization; and
Velásquez, Bámaca 241 sympathy 38–40, 43, 45; and terrorism
via Nanclares (repentant ex-terrorists) 322, 325, 326–7, 329–32, 333–6,
325 338–41; and transformation of victims
Vicariate of Solidarity (Chile) 232 183–5, 203–4; and transitional justice
Victim Care Units 122 169–70, 172, 174–5, 176–7; and victim
408 Index

concerns 277–8, 281; and victim identity victim identity 14–16; and victimology
15–16; and victims’ rights in NICs 69, 12; and Victims’ Code (2006) 21–2
73, 74, 78; and wrongfulness 41–5 vindication (victims’ justice needs) 388
Victimization and Justice Model 378, 379, ‘violent crime’ 114–15
382–90 VIS (victim impact statements) 75, 277,
victimology: and criminal justice systems 282–7, 292
212; and development of victims’ VOCA (Victims of Crime Act, 1984)
rights 12; and integral justice 185, 189, 108–9, 110, 115, 118, 121, 123, 125
193, 200, 206; and mass victimization ‘voice’ 279–80, 281, 283–5, 288–90, 388
211–13, 215, 223; and transitional justice VOM (victim–offender mediation) 277,
162, 168–71, 176 287–91, 292
Victims Advisory Panel 16, 25 Von Hentig, Hans 67
Victims of Crime Week (1987) 17 Vos, K. 286
Victims of Crimes Bill (Philippines, 2010) VTVPA (Victims of Trafficking and
77 Violence Protection Act) 150
Victims of Hostile Action Law (Israel, 1970)
110 Waite, Terry 36
Victims’ Code (2006) 21–2 Walker, Laurens 279
‘victims’ justice needs’ 388–90 Ware v. Hylton (1796) 95
victims’ rights: and bipartisanism Watts, Alan 204
of lawyers 24; and class 26; and WCAR (World Conference against
common law jurisdictions 23–4; and Racism, 2001) 92
compensation see compensation; Weber, Max 229
cost of 23; and crime figures 14–15; Welsh, H. 365
and Criminal Injuries Compensation Wemmers, J.-A. 280, 286, 288, 289, 290
Authority 17, 23; and criminal justice Wendell-Holmes, Oliver 41
system 11–12, 16–17, 19, 21, 24–6, Wergens, A. 106
32; and defining ‘victims’ 12–14; Wilber, Ken 190, 200
development of 11–12, 32, 66–8; Wilkinson, R. 322
eligibility of victims 16–18; and Williams, M. 327
empathy 40–1, 45; EU action on see Wispé, L. 38, 39
EU action on victims’ rights; and Witness Protection, Security and Benefits
feminism 11; and human trafficking Act (Philippines, 1991) 77
see human trafficking; and integral World Society of Victimology Symposium
justice 205, 206; legislation on see (2003) 36
legislation protecting victims’ rights; wrongfulness 33, 41–5
and marginalisation of victims 11;
and nature of rights 18–20; in NICs ‘yardstick of harm’ 42, 43–4
68–82; and private prosecutions 24–5; ‘Yoyes’ 337
realpolitik of 20–6; and ‘rebalancing’
105, 124; respecting victims see Zawisza, C. 330
respecting victims; and restorative Zeanah, C. 313–14
justice 330, 339; and trauma 15, 16; and Zheng, G. 71