#NoMoreImpunity || Blog Symposium || Gender, Torture & Political Reconciliation



Colleen Murphy

June 26 marks United Nations International Day in Support of Victims of Torture.[1] I offer below my reflections on some of the gendered aspects of torture, and the implications of torture for both reconciliation and transitional justice.  I focus specifically on torture committed in conflict and repression, for it is in transitions from such periods that the moral aims of political reconciliation and transitional justice are often invoked.

Gender influences the nature of the harm inflicted and the consequences of torture, as well as access to justice in the aftermath of torture.[2]  One form of torture is gender-based sexual violence, including but not limited to rape. Girls and women as well as men and boys are subject to such torture.[3]  The consequences of being a victim of such torture are gendered, influenced by background structural inequality and entrenched gender roles. For women and girls, the consequences of rape can include ostracism from family and community, social stigma, forced marriage to their rapists, pregnancy, infertility, and increased poverty as economic opportunities are foreclosed as a result of stigma and ostracism. For men and boys, consequences include physical problems with urination or sexual problems, a perception of being weak (and as such “emasculated”), stigmatization, and ostracism.[4]  Attention to the gendered dimensions of the consequences of torture is important to get an accurate and complete characterization of the harm experienced by those tortured.

Appeal to reconciliation is common following extended periods of conflict and repression.  Reconciliation is the repair or bettering of a relationship among parties previously in conflict.[5] I focus here specifically on societal reconciliation, improving the relationships among citizens and between citizens and officials. [6]  Conflict and repression significantly damage such relationships, and processes of reconciliation and transitional justice typically aim to repair this damage.  Stated in very broad terms, political relationships suffer because of an erosion of the conditions of respect for agency and reciprocity. Conflict and repression specifically undermine (1) the rule of law (for example, declared legal rules do not govern the conduct of officials and citizens in practice), (2) the reasonableness of minimal trust in the competence and lack of ill-will of citizens or officials, and (3) the genuine opportunities of some or all citizens to be respected, recognized as a member of a political community, participate as equals in economic and political processes, and avoid poverty.

Torture contributes to these forms of relational damage.  It is characteristically not sanctioned by declared legal rules, and so its sanctioning or commission by officials itself constitutes a violation of the rule of law.  Torture, when widespread, creates an environment of uncertainty, where citizens cannot turn to declared legal rules as the basis for their expectations of the treatment they are likely to receive by other citizens or officials.  This in turn is one important source of distrust.  The political purposes or functions of torture are paradigmatically to erode agency by creating an incentive for individuals to refrain from political engagement or interaction and to accept the status quo no matter how unequal that might be.

The immediate subject matter of processes of transitional justice (such as reparations, criminal trials, and truth commissions) is particular violations of human rights.  However, such processes typically aim at broader objectives like reconciliation as well.  There are recurring worries and objections voiced about the treatment of the victims whose violation are the subject of such transitional justice processes.  Underlying such worries is a concern that victims not be treated instrumentally, that is, as important only insofar as their testimony contributes to the achievement of broader societal aims.

Such worries point to the importance of two distinct, but interrelated, dimensions of transitional justice.  Transitional justice, as I argue in my forthcoming book, is at its core about the just pursuit of societal transformation.[7]  Societal transformation entails relational transformation or political reconciliation of the kind described above.  The “just pursuit” of transformation requires respect for the independent moral claims that victims of torture have, which processes must aim to satisfy.  It is important to keep both aspects in mind when evaluating processes of transitional justice.  Such processes can fail to be just in one of two ways: by failing to contribute to societal transformation or by failing to satisfy the claims of victims or demands vis-à-vis perpetrators.  This duality is familiar from other contexts, including theorizing about war.  As many versions of just war theory recognize, wars can fail to be justified in two ways: by failing to be initiated in a way that satisfies the requirements of jus ad bellum or by failing to satisfy the moral constraints for conduct in war required by jus in bello.

The moral aims associated with responding to victims include acknowledgement of the wrong done, recognition of the status of victims as moral agents who are rights bearers, recognition of their status as members of a political community, and reparation.  Promoting these aims requires attention to the gendered dimensions of violations. Acknowledgement of wrongdoing must acknowledge the specificity of the wrong done and its subsequent consequences.  Similarly, appropriate reparation of harm depends on an accurate characterization of the harm suffered.

Though distinct, the two dimensions of transitional justice are often interrelated in practice.  Failure to appropriately and fittingly respond to victims can negatively impact prospects for the recognition of members of a marginalized group from which the victim comes as rights bearers and members of a political community.  Conversely, the failure to pursue broader relational reform can impact the ability of a specific transitional justice process to meet the victim oriented demands. When the source of the denial of membership is not just individual acts of torture but also institutional rules and norms, including but not limited to gender norms, recognition of stigmatized rape victims as rights bearers and equal members of a political community becomes tied to changing norms.  One implication of these interdependencies is that transitional justice processes should be designed, implemented, and evaluated not in isolation, but rather holistically, taking into account the range of response(s) to wrongdoing that are (or are not) being pursued in a given context.

Colleen Murphy is Professor of Law, Philosophy & Politics, and Director of Women & Gender in Global Perspectives (WGGP) at the University of Illinois at Urbana-Champaign.

[1] The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx.

[2] Juan Mendez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, January 5, 2016, http://antitorture.org/wp-content/uploads/2016/02/Gender_Report_A_HRC_31_57_E-5.pdf

[3] Heleen Touquet and Ellen Gorris, “Out of the shadows? The inclusion of men and boys in conceptualisations of wartime sexual violence,” Reproductive Health Matters DOI: http://dx.doi.org/10.1016/j.rhm.2016.04.007

[4] I am grateful to Heleen Touquet for very helpful comments on this section.

[5] Linda Radzik and Colleen Murphy, “Reconciliation,” Stanford Encyclopedia of Philosophy (Summer 2015 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/sum2015/entries/reconciliation/.

[6] The view of reconciliation outlined here is described in detail in Colleen Murphy, A Moral Theory of Political Reconciliation (New York: Cambridge University Press, 2010).

[7] Colleen Murphy, The Conceptual Foundations of Transitional Justice (New York: Cambridge University Press, forthcoming).

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