Redressing an oppressive past which seeps into the present – a meeting with Andrea Durbach

 Who is Andrea Durbach?andrea durbach-3

Andrea Durbach’s career has been deeply entangled with access to justice. Currently a professor at UNSW Law in Australia, Andrea, born and brought up as a white, middle class woman in apartheid South Africa, was introduced to the legal profession working as a human rights lawyer opposing the apartheid regime, often representing student organisations and labour unions. Although she witnessed law being used simultaneously as an instrument of oppression and discrimination by the apartheid state, she expresses her choice of study as one inspired by the idea of law being used in the pursuit of justice. The possibility to ‘hold the law up against the state’ – or using the master’s tools to dismantle the master’s house – was appealing to her as a young lawyer.

In one of her most famous cases from the end of the 1980s, she acted as the solicitor to 25 black defendants (who became known as the ‘Upington 25’) who were facing the death penalty, accused of killing a black policeman under the notoriously used common purpose doctrine. The trial was gruelling, both inside and outside the courthouse. Shortly after 14 of her clients were sentenced to death, her barrister in the case, her colleague and friend Anton Lubowski, was assassinated by state agents – which she describes as symbolising ‘the lengths people would go to in order to silence and terrify opponents of the state’. Andrea subsequently depicted her experiences of the case in the book, Upington. The story of the Upington 25 was also made into a documentary film, A Common Purpose, directed by Mitzi Goldman which won the Audience Award at the 2011 Sydney Film Festival.

 The trial took its toll on Andrea’s personal and professional life and she took time out with family in Australia in 1989, where she eventually stayed. Since then, she has, among other things, worked in a major Sydney law firm, directed a litigation and policy centre, the Public Interest Advocacy Centre (PIAC) (1991–2004), worked as an academic and Director of the Australian Human Rights Centre at UNSW Law and was appointed Deputy Sex Discrimination Commissioner at the Australian Human Rights Commission (2011–2012). Throughout her career, she has been instrumental in establishing mechanisms that facilitate access to justice, such as the Public Interest Law Clearing House (which matched pro bono lawyers in private practice with public interest litigation and NGOs), a proposal for a Stolen Generations Reparations Tribunal to address the injustices caused by the forced removal of Aboriginal and Torres Strait Islander children from their families, and more recently, she has been part of a major research project which considers the capacity of courts and tribunals to implement ‘transformative’ reparations to combat gender violence post-conflict. In recognition of her extensive human rights contribution, Andrea was awarded the Australian Human Rights Commission Human Rights Law Award in 2013.

On 30 October, Andrea delivered the 2018 John Barry Memorial Lecture at the School of Social and Political Sciences at the University of Melbourne, entitled ‘Keeping justice at bay: institutional harms and the damaging cycle of reparative failure’. When I meet her, remedies, reconciliation and reparations are our main conversation themes. Perhaps this is due to the enduring demands on states to provide reparations for historical injustices that persist in the present, evident in ongoing discussions in Australia concerning public responsibility for the past oppression and the continuing marginalisation of Indigenous communities.

What remedies?

Holding states to account for abusing the human rights of individuals and communities has been a key driver of much of Andrea’s work. Remedies in the broad sense can be described as the provisions of measures directed at righting a wrong. They are often referred to in a collective sense, sometimes in the context of national reconciliation efforts and transitional justice settings – such as the Truth and Reconciliation Commission in South Africa – addressing past wrongs and harms with a view to transition and transformation into a fairer social order. Apart from this social meaning, remedies and reparations also have an individual dimension, with a right to remedy for persons whose rights have been violated. In the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, remedial modalities are taxonomised as restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Remedies are not, however, limited to legal, judicial, or even state-centred settings. Andrea emphasises alternative forms of reparation and healing for individuals and communities – using the example of the earlier mentioned documentary film concerning the Upington 25 court case:

The film, in a way, is a reparation, because it enabled my clients to tell their experiences outside of the confines of the court case, without the strictures of what is permitted as evidence and what is not. This allowed for an opportunity to tell their story in a neutral setting, to have it validated via a different process [documentary], rather than trying to persuade a judge who was so much part of the apartheid infrastructure and an agent of the state. So it was a journey, a reparative journey, for many of them … and for their children to see what they had done and how they had been treated. And for the world, the South African nation, a democracy, to see them as people who had contributed to that democracy, rather than as accused numbers 1 to 25 … having to answer allegations against them which in the majority of cases had been fabricated.

What is important when designing and implementing transformative reparations?

Rather than being merely backward-looking, simply aiming to restore things as they were, the objective underlying transformative reparations is that the structural conditions that enabled historic violations which often maintain post-conflict, require transformation to prevent the recurrence of harm. As Andrea highlights, ‘[political] transition is […] meaningless unless there is transformation’. Symbolic reparations such as apologies, she says, cannot make a ‘difference unless they are met with deep, structural shifts – meaningful measures of justice – in how we respond to the needs of different communities’. In recognising the need for such structural shifts if reparations are to be transformative, Andrea highlights the contextual embeddedness of harms ‘that continue to manifest post-conflict’ which demands comprehensive understanding of the broad needs of beneficiaries – material, therapeutic – in order to determine appropriate remedies.

Having insights into both South African and Australian reconciliation efforts, Andrea highlights shortcomings in both. The South African transitional justice process was one that required a ‘wholesale’ reconstruction and redistribution of ‘the economy’ and ‘the whole political infrastructure’. The post-apartheid South African Constitution advocates transformation, with its preamble recognising past injustices with the aim to ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’. In Australia, on the other hand, Andrea speaks of ‘more contained but no less significant or transformative’ measures, such as permanently guaranteeing political participation and inclusion of the voices of Indigenous peoples, as proposed in the 2017 Uluru Statement from the Heart. Such transformative changes, however, are yet to be made.

There have been compensation schemes, there has been a national apology, there has been a walk across the [Sydney harbour] bridge. The problem with all of those [measures] is that they do not address … the structural transformation that is needed. You can have all these payment schemes and bits of money coming here and there, but [their value is limited] if you do not change the structure of the policies and the political system to accommodate the call for political recognition [as per the Uluru Statement from the Heart] and to meet the needs with comprehensive, enduring measures of real justice.

‘Truth-telling and treaty making’, Andrea emphasises, are ‘very structural, foundational validations of a nation. Of our First Nations’.

Can we compare different reparative and reconciliation processes? What are the limitations and benefits of comparison?

Remedial debates – with reference to transitional justice contexts, state mistreatment of minorities or other forms of abuse – have intensified in many countries during the last decades. But is it possible to draw parallels between and compare reconciliation processes that might emerge from different historical, social and cultural contexts? What do efforts to redress injustices such as institutionalised racism, systematic gender violence, or abusive health care practices – to name but a few –have in common? In responding, Andrea embraces what she refers to as ‘the dual approach’, in other words, to both critique and to ‘extract the value’ of other reparations processes. ‘What I think has worked’, she says, ‘is being able to analyse and critique these various models and then shape some of the useful measures that come out of them’ in a way appropriate to ‘local traditions and needs and local politics. Just supplanting approaches never works’.

Addressing structural gender violence – another form of transitional justice?

Discussing her more recent work on violence against women and sexual assault in Australia, words like ‘reconciliation’ and ‘remedies’ take on a different tone. Gender violence – particularly sexual violence against women and girls – is ‘endemic to almost all political conflicts’ and to all struggles around social, economic and cultural power. Awareness of the pervasive nature of gender violence has been raised through global movements like #Metoo which seek transformative ways to redesign society and rethink power distribution. Answering the question about what lessons can be learned from transitional justice processes in addressing gender violence debates, Andrea highlights the importance of ‘the inclusivity of voices, but also managing the expectations of those we hope will benefit from the process’. Including victim/survivors in not only the process but in its design ‘from the start’, is critical. But so is validation and follow-up by responsible individuals and institutions. ‘You cannot really expect people to come and give testimony, to open themselves up, and expose the harm and then not meet that in a respectful and just manner’, she says. Just leaving people ‘suspended [following their testimony] is a very damaging process and leads to cycles of reparative failure with long-term public health and social consequences’.

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