10 years after Tokhang: Options for transitional justice and reconciliation

So given those conditions, what could a transitional justice program for Tokhang victims, particularly for orphaned children and youth, possibly look like?

Alternatively formulated as dealing with the past or "restorative justice,’ the concept of transitional justice and reconciliation is built on the premise that the State has a responsibility to provide redress to victims of past abuse in accordance with legal obligations under international human rights law and international humanitarian law.

Its origins root in the post-WWII Nuremberg Trials that prosecuted Nazi and Japanese soldiers; the trials of military juntas in Argentina and Greece in the 1970s and 80s; and the democratisation processes of the 90s. The most popular mechanisms include the post-apartheid truth commission in South Africa, and reparations programs for indigenous peoples in Canada and Australia. Indigenous forms of restorative justice exist: blood payments, rituals, peace pacts, particularly for warring between tribes and clans. However, Western constructs of transitional justice and reconciliation become relevant due to the sins of an equally Western construct: the modern Nation-State.

While transitional justice has been traditionally associated with the investigation of human rights violations after authoritarian regimes or in the "post-conflict" environment after the signing of a peace agreement, its power lies in the radical political and economic transformations that are possible in moments of instability and flux. Changes that, if done right, can promote social integration and trust, strengthen institutions, and enable the participation of citizens who have been excluded and marginalized.

Dealing with wounds of the past

Thus, despite Duterte loyalists’ stance that the ICC and the United Nations have no jurisdiction over domestic affairs of the Philippines—and why didn’t they investigate the Americans over Iraq, those fucking hypocrites—healing the wounds of the drug war could not help but be a domestic priority in the year 2032. Not with 5% of the population killed by the State, at least 20-30% directly or indirectly affected, as victims or as perpetrators. The final kill lists showed that the majority of those executed were poor, working-class. High-profile drug lords mostly walked, scot-free.

International experience suggests that any serious transitional justice effort should be dealt with in a holistic manner and constructed around four inseparable rights:

The assumption being that those affected do have rights, and these programs do not mean that peoples’ forgiveness is being bought off. As if they ever could. Reconciliation is not a substitute for justice, as the revenge killings done with little more than icepicks and barbecue sticks would attest. No such thing as forgiving and forgetting. To do transitional justice means to deal with the wounds of the past and its ramifications on the present, to ensure that communities and families can begin to move towards building a viable future.

Operationally, this means:

Ad nauseam.

One might argue that thinking of transitional justice in a post-truth world is nothing but a pipe dream, as the Philippines has had its own share of attempts. There were two separate presidential commissions created after the Martial Law era, one to pursue accountability for large-scale corruption (tracking down x billion in ill-gotten wealth across x countries), and another to pursue accountability for human rights).

The younger Aquino attempted to create another two: one to investigate corruption under Gloria Macapagal Arroyo (declared unconstitutional by the Supreme Court) and a Transitional Justice and Reconciliation Commission created under the Comprehensive Agreement on the Bangsamoro signed with the Moro Islamic Liberation Front. One could argue that these institutions were largely top-down, technocratic, and did not fully capitalize on existing cultural models and mechanisms despite their best efforts, and so had limited traction on the ground. Perhaps the right approach has yet to be found.

Nevertheless, there must be spaces for dealing with crimes and wounds that are not writ in the language of violence (as in putang ina obosen na ang mga hinayupak na yan, hinayupak being either the State, or the killers, or the original drug addicts and pushers themselves, as you choose) but instead, can give a chance for something a little more fair. The experience of multiple countries highlights how there is no such thing as "post-conflict"—only "post-violent" or "post-traumatic."

In that sense, we hapless mortals are bound to enter into more cycles of conflict and violence and trauma until the sun winks out. But for as long as society sees value in acknowledging the worth of a life, and the pain and suffering of families and communities when such lives are snuffed out, regardless of socio-economic status, drug use history, or creed, then perhaps there is space for things as transitional justice. – Rappler.com


Maria Carmen "Ica" Fernandez is a spatial planner and development worker based in Quezon City. She belongs to the 2015-2016 batch of British Chevening scholars in the Philippines. She holds an MPhil in Planning, Growth and Regeneration from the University of Cambridge. She studied transitional justice in cities for her dissertation.