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Introduction

Last week, I attended the conference ‘How to Repair Historical Injustice?’, which marked the conclusion of the NWO-funded VICI project ‘Dialogics of Justice’, led by Nicole Immler. This five-year interdisciplinary research project based at the University of Humanistic Studies, has examined the growing number of civil cases brought before Dutch district courts by individuals affected by colonial violence, military interventions, institutional abuse, and environmental harm. Central to the project was the question: can legal proceedings meaningfully foster responsibility and provide the recognition that claimants seek? More broadly: what would justice need to look like to become genuinely transformative, for those directly affected as well as for society at large?

Over the course of two and a half days, scholars, legal practitioners, and individuals affected by historical injustice came together to reflect on a wide range of cases and ongoing struggles for justice. These included, among others, the genocide in Srebrenica, abuse within the Catholic Church, and environmental damage caused by multinational corporations. I was invited to speak about the aftermath of intercountry adoption, and in particular, about the current challenges in recognising and redressing its long-term consequences.

The aim of the conference was to “think these cases together”. At first glance, they may seem vastly different, shaped by distinct geographies, historical contexts, and institutional settings. Yet, beneath these surface differences, striking similarities began to emerge in how harm was produced and how justice is pursued and negotiated. What became increasingly clear to me was that intercountry adoption can be understood as part of a broader landscape of historical injustice. In this blog post, I reflect on these parallels and consider what the field of intercountry adoption might learn from other struggles for justice.

Intercountry Adoption as a Case of Historical injustice?

The conference concerned different cases of historical injustice, cases that involved serious harm that occurred in the past – often involving systemic abuse, discrimination, or exploitation – that continues to have moral, social, or legal relevance in the present, often across generations. These injustices were all committed or enabled by powerful institutions of the state, the church, or corporations, and they often affect marginalized or vulnerable groups. Intercountry adoption fits within this understanding in several ways.

A growing body of research and investigative reporting has documented the serious harms associated with intercountry adoption. In many cases, children are permanently separated from their families, histories, and cultural contexts – often without the informed consent of those involved. Children have been abducted or sold, birth families deceived or coerced, and identity documents falsified or fabricated. Such practices constitute clear violations of fundamental rights, including the right to family life and the child’s right to preserve their name, nationality, and family relations (also called the right to identity).

These harms do not end with the act of separation. They are long-term and enduring, shaping lives in ways that are only now beginning to receive broader recognition. While not all individuals experience these consequences in the same way or to the same extent, for numerous adoptees this includes identity loss, limited access to personal histories, and a persistent sense of disconnection from origins, culture and language. When records are missing or inaccurate, reconstructing one’s past can become difficult or even impossible, leaving lasting gaps in personal identity. At the same time, families of origin are left with grief, uncertainty about the fate of their child, and the enduring consequences of losing a child under unclear or unjust circumstances.

These harms are often transgenerational: the effects of separation and loss do not end with those directly involved but continue to shape relationships, identities, and emotional lives across generations. Adoptees may pass on questions of identity, belonging, and loss to their own children, while families of origin may experience lasting disruptions to family structures. In this respect, the consequences of intercountry adoption closely resemble those found in other forms of historical injustice, where harm continues to reverberate over time rather than remain confined to a single moment or generation. More often than not, it is then also the next generation that carries forward the fight for recognition and accountability, continuing the efforts of earlier generations.

As in other cases of historical injustice, the harms associated with intercountry adoption are best understood as structural rather than incidental. They do not arise from a few individual failures, but from broader systems, policies, and institutional practices that have enabled and normalized harmful practices over time. These dynamics are embedded in wider (historical) inequalities, which have shaped the conditions under which intercountry adoption emerged and expanded and abuses occurred. At the same time, powerful institutions, such as states, adoption agencies, and, in some cases, religious organizations, have played a central role by directly committing these abuses or facilitating them, also by creating the legal and administrative frameworks that made them possible.

Hegemonic Truths and the Importance of Archives

As transpired during the conference, truth is a central dimension of justice for victims and survivors: truth about what has happened (to them) and the role powerful institutions (such as the Dutch state, the catholic Church or a corporation like Shell) played in committing or enabling the wrongdoing. However, hegemonic narratives often make truth difficult to emerge in cases of historical injustice. These are dominant stories about the past that are produced and maintained by powerful institutions (often those implicated in the injustices) and shape how events are publicly understood and remembered.

For example, the Dutch state explains the conduct of the Dutchbat peacekeeping mission in Srebrenica in terms of limited resources, an unclear mandate, and impossible circumstances, framing the outcome (the killing of around 300 Bosnian men expelled from the Dutchbat compound during the 1995 Sebrenica massacre) as a tragic misjudgement rather than a failure to protect. The Catholic Church frames the abuse of children as the wrongdoing of a few individuals, rather than as something rooted in the structures of the institution itself. And in the Niger Delta, companies like Shell point to their role in bringing development, while explaining environmental damage in terms of sabotage or weak governance.

Also in discussions about intercountry adoption, a dominant narrative continues to shape how the practice and its aftermath are understood: the “rescue” narrative, which presents adoption as the ultimate humanitarian act that saves children and offers them a better life. Although this image is increasingly being questioned in Europe – and in particular in the Netherlands, following the Joustra investigations – it remains the main lens through which past intercountry adoptions are interpreted. While the Dutch state has apologised for failing to prevent abuses, it continues to rely on a narrative of having acted with good intentions and according to “the norms of the time.”

All these hegemonic narratives do similar work: they make harm appear incidental and unavoidable and obscure institutional responsibility; they frame historical injustices as well-intentioned errors  rather than as manifestations of systemic failure, and they encourage administrative remedies over deeper engagement with accountability. Even if responsibility has been accepted through an apology, it is not actually being taken. This is why individuals affected by historical injustice often feel victimised twice: first through the injustice itself, and later when their experiences are not fully heard or believed or when responsibility is disputed, and when recognition remains partial or fragmented.

Legal Proceedings as a Site of Contestation

Across the cases discussed at the conference, civil legal proceedings emerged as an important space of contestation. Th work of the Dialogics of Justice research team shows that, for many affected individuals and communities, going to court is a last resort, often pursued after other attempts to be heard or recognised have failed. Litigation then becomes a way to confront powerful institutions and their dominant narratives. It offers a space for victims to tell their stories, seek truth, and show how the past continues to shape the present. In this sense, it is not only about harm and injustice, but also about reclaiming voice and agency.

As Liesbeth Zegveld explained in her keynote speech: there is a growing momentum to address cases of historical injustice through civil litigation. She had represented the widows of Rawagede, who in 2009 brought a case against the Dutch state over the 1947 massacre of Indonesian villagers. In 2011, a Dutch civil court issued a landmark ruling holding the state liable and ordering it to pay compensation. Zegveld had also represented the Nuhanović and Mustafić families in proceedings about the Srebrenica massacre, which ultimately led to a  judgment by the Supreme Court of the Netherlands in 2013 holding the Dutch state liable for the deaths of three Bosnian men who had been expelled from the Dutchbat compound.

As Paul Gready reflected at the end of the conference, litigation in these contexts operates on two levels: On a micro level, it can provide formal acknowledgment of wrongdoing and financial compensation to those affected; on a macro level, it can contribute to reshaping dominant narratives and compel institutions to confront their role in past harms. At the same time, however, pursuing claims against the state is often a lengthy and demanding process, requiring significant emotional and financial resources. Furthermore, tort law suffers from limitations that often make civil litigation an inadequate tool to address cases of historical injustice.

One obstacle are the relatively short limitation periods. This means that people must bring their case within a certain number of years after the harm occurred – or after they became aware of it. If they wait too long, their claim may no longer be accepted, even if the harm was serious. In cases of historical injustice, this can be particularly challenging. Many individuals do not come forward immediately, often due to shame, trauma or fear, or because they only later come to understand what happened to them. As a result, by the time they are ready to seek justice, the legal time limit may already have passed. This was, for example, the case in litigation brought by Dutch women forced to relinquish their children between 1956 and 1984, where the court rejected the claim as time-barred.

Another practical limitation concerns evidentiary rules. Civil litigation places the burden of proof on the claimant, who must demonstrate that the alleged harm occurred and that the defendant is legally responsible. In cases of historical injustice, this can be particularly difficult. Archives play a pivotal role in this context, as they are often essential for reconstructing was has happened and uncovering the truth. However, often archives are not neutral but themselves products of institutional practices and power relations. They are curated, organized, and controlled by the very actors implicated in these histories, which means they can also reproduce silences, omissions, and asymmetries. What is absent from the archive can be as consequential as what is preserved. The passage of time only compounds these difficulties, making it increasingly challenging to reconstruct events with sufficient precision.

Beyond these practical hurdles, tort law is also subject to more fundamental, structural limitations in addressing historical injustice. As I have argued in a previous blog post, tort law tends to individualise both harm and wrongdoing, even where the injustice is systemic in nature. It requires claimants to frame their experiences in terms of discrete acts committed by identifiable actors, and to link these acts to clearly defined forms of legally recognisable harm. However, historical injustices, such as those arising in the context of intercountry adoption, are often characterised by structural conditions, institutional failures, and patterns of abuse that unfold over time. As a result, courts may struggle to capture the full scope of harm, particularly its cumulative, relational, and intergenerational dimensions.

From Affirmative to Transformative Justice

Even where litigation is successful, it offers only a partial response to the long-term harms associated with historical injustice. Court rulings may clarify responsibility, disrupt dominant narratives, and provide formal acknowledgment or financial compensation. Yet such remedies rarely address the deeper structural and relational dimensions of harm: the loss of identity, relationships and trust etc., often unfolding across generations and affecting both individuals and communities. Justice, therefore, cannot be reduced to individual legal outcomes alone – which can provide, as has been described, “affirmative justice” – but requires a more transformative approach. Addressing historical injustice from this perspective requires confronting and transforming the broader legal and institutional systems that produced these harms and continue to shape the possibilities for repair.

In practice, however, existing repair mechanisms frequently mirror the very structures that gave rise to the harm, thereby constraining their transformative potential. This was evident across all cases discussed at the conference. While institutions may provide formal acknowledgment or compensation, they struggle to address the collective, intergenerational, and structural dimensions of injustice. As a result, many affected individuals and communities continue to experience a persistent gap between what is offered and what is needed. This tension is also present in the context of intercountry adoption. Forms of recognition, such as the official apology or findings of systemic abuse, represent important steps; yet, for many adoptees, meaningful repair requires more: easier access to records, the possibility of reconnecting with family etc.

So how can systems be transformed to enable more meaningful forms of repair? Framing the question in this way shifts attention from individual cases to the broader conditions under which harm is produced and addressed. It invites a reconsideration of what counts as repair, not as a discrete outcome, but as a process that engages with the structures, relationships, and narratives through which injustice persists. It is here that the value of cross-case learning becomes clear: By thinking intercountry adoption alongside other cases of historical injustice, shared challenges come into view and recurring patterns become visible. And while no single model of repair exists, such comparisons may help illuminate both the possibilities and the constraints of current approaches, and point toward more genuinely transformative ways of addressing harm.