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Litigation as Recovery

Can the law help survivors of war heal?

Key points

  • Providing testimony can sometimes help survivors of torture recover.
  • The Torture Victim Protection Act was enacted in part to help survivors heal.
  • Striking a balance is challenging: Litigation can sometimes re-traumatize survivors.

Russia’s invasion and war on Ukraine is traumatizing yet another generation of war survivors and creating the largest refugee crisis in Europe since World War II, according to the U.N. Ukrainians survivors, sadly, will join millions of others who have also suffered egregious violations of their human rights through wars, genocides, torture, slavery, and who have been forced to rebuild their lives and sense of agency.

Alongside the terror of experiencing bombs, shelling, executions, and the destruction of homes, homelands, livelihoods, families and ways of life, war’s brutalities leave psychological wounds, often damaging the survivors at their cores. The post-traumatic stress can be so intense that it can transfer as secondary trauma onto service workers who witness, report, interact with or otherwise seek to aid the survivors, including human rights workers, journalists, lawyers, social workers and therapists, so much so that many have to take leaves of absence from the work.

Mental health recovery for survivors of war and especially the worst parts of war, such as torture, is complicated by the combined psychological and physical injury that can accompany these experiences. This recognition has given rise to body-mind therapies and to specialty organizations, such as the Kovlar Centre and Survivors International, founded to support survivors of war and specifically torture.

The Legal System as Recourse

In some cases, one additional avenue has helped survivors in their recovery—the legal system. Backed by the law, their lawyers and official proceedings, some survivors have found that taking legal action, facing their abusers in a court of law, especially if validated through the process, has helped them recover a sense of agency (see, for example, Stepakoff et al 2015).

The idea of litigation as a means of recovery emerged at least twice in the U.S. and gave way to a new law for survivors of extrajudicial killing or torture and at least one new non-profit organization in their service. The first was in June of 1990 during Congressional hearings for a piece of legislation that passed into law, becoming the Torture Victim Protection Act (TVPA) two years later.

At that hearing in the Senate’s Subcommittee on Immigration and Refugee Affairs, Senator Edward Kennedy (D-MA) raised the question to expert witnesses who were testifying in support of the bill: Could the litigation process support recovery for these survivors? Kennedy’s constituent, a Massachusetts-based man who had been tortured in Saudi Arabia, had suffered immense PTSD that afflicted his life and harmed his capacity to function normally in work and society. Yet because the torture had occurred in Saudi Arabia, under the color of law, his constituent had no recourse and no means of redress, said Kennedy. The expert witnesses affirmed that litigation offered both real and symbolic effects that could aid in recovery.

The TVPA explicitly allows survivors of extrajudicial killing or torture to sue their violators in US courts, even if the survivors are foreign, and were violated on foreign soil by another foreigner. Meant to affirm and strengthen an earlier law (the Alien Tort Statute) used in these types of cases, Congress also sought to support survivors of egregious human rights abuses by offering access to U.S. courts, and to provide a model for other countries to emulate.

Two Case Studies

The idea of litigation as recovery was raised again by a West Coast-based therapist, Gerald Gray, who had been counseling survivors of political torture. Gray had attended a talk by a human rights lawyer, Paul Hoffman, who represented three young Ethiopian women who had suffered torture during the Red Terror in their country. After fleeing Ethiopia, one of the women found refuge and work in Atlanta, Georgia. But in a terrible surprise, the man who had tortured her had done the same. With the help of two nonprofit organizations, Center for Constitutional Rights, the ACLU, and local attorneys in Georgia, she and two of her compatriots sued him, ultimately winning a $1.5 million judgment and secured his deportation. What little they collected, they donated to the NGOs that supported them.

Knowing the suffering of his clients, Gray thought litigation could offer two important aspects of recovery. It could restore agency for those who were willing and able to bring a case, and it was a civilized form of retribution that could potentially prevent cycles of violence between victim and torturer, should they reencounter one another.

Especially if the judgment includes deportation of the violator, they would no longer encounter him in their country of refuge. That gave birth to another non-profit organization: The Center for Justice and Accountability continues this mission of supporting survivors of egregious human rights violations.

Does it work? While such cases can bring a sense of recovery, they can also retraumatize, and some are so wounded, they can hardly fathom ever revisiting the dark chapters of their lives. But even in cases where re-traumatization occurs, there can be healing, as was the case for Suleiman Salim, the Tanzanian man who was mistakenly rendered into a CIA black site and interrogated with methods that psychologists would consider torture.

In 2017, during depositions in his case against the contract psychologists who designed the program, the opposing counsel forced him to revisit, again and again, his experiences, to the point where he dissociated, according to his lawyers. But with their support and the support of a counselor, he returned with resolve, completed the deposition, and in 2019, settled the case he and other survivors had brought. The process is not for everyone, as litigation can be extremely stressful in itself, but it is available, and for some, has served as another pillar of the recovery process.

References

Armoudian, M. 2021. Lawyers Beyond Borders: Advancing International Human Rights through Local Laws and Courts. Ann Arbor: University of Michigan Press.

O'Connor, Seini, Byimana, Leonce, Patel, Sheetal, Kivlighan, Dennis. Corrective Political Experiences: Psychological Impacts of Public Testimony for Survivors of Torture. Prof Psychol Res Pr. 2021;52(6):588-599. doi:10.1037/pro0000414.

Puvimanasinghe T. S., Price I. R. (2016). Healing through giving testimony: An empirical study with Sri Lankan torture survivors. Transcultural Psychiatry, 53(5), 531–550.

Stepakoff, S. , Reynolds, G. S. , Charters, S. & Henry, N. (2015). The Experience of Testifying in a War-Crimes Tribunal in Sierra Leone. Peace and Conflict: Journal of Peace Psychology, 21 (3), 445-464. doi: 10.1037/pac0000096.

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