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International Research Seminar:Towards a Conceptualisation of the Economic and Social Dimensions

of Transitional Justice8th and 9th September

(Venue: Meeting Room 1, Firstsite Colchester)

DISCUSSION PAPERS

From 8th to 9th September 2012 the Essex Transitional Justice Network and the School of Law of the University of Essex held their third international Research seminar on the economic and social dimensions of transitional justice, funded by the British Academy. The aim of the seminar was to contribute to advancing the theoretical conceptualization of the economic and social dimensions of transitional justice. The discussants were asked to address the following questions:

What are the economic and social issues that are relevant to TJ?

What are the benefits of broadening TJ mechanisms in this way, and what are potential drawbacks?

How can the inclusion of socio-economic factors be achieved?

And how can socio-economic issues specific to TJ be distinguished from general problems surrounding the violation of economic and social rights?), or on those that are of particular interest to you.

Are these the right questions to be asked in order to advance the discussion of the economic and social dimensions of TJ, or which questions should, instead, be addressed?

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Ruben Carranza

By clinging to false dichotomies, a TJ approach that does not engage with ESR violations undermines the theoretical and practical indivisibility of human rights.

Economic and social rights violations can be the cause as well as the consequence of human rights violations involving physical integrity, e.g. the forced disappearance of a parent leading to the loss of a family’s livelihood or subsistence, or the denial of employment/economic opportunities leading to protests and to the suppression of those protests. When these violations take place during a conflict or over the period of a dictatorship, there clearly is no reason, conceptually, to exclude one or the other set of violations from the scope of a TJ mechanism.

What should proponents of an ESR engagement by TJ invest in as a matter of strategy?

Should it be a strategic investment in the design of TJ mechanisms and approaches appropriate and specific to particular forms of ESR violations rather than borrowing or ‘riding on’ existing TJ mechanisms meant for non-ESR violations? For example statement taking in violations involving the right to education. Or should it be an effort to draw parallels between ESR violations and physical integrity/CPR violations in ways that can lead to feasible ways of reporting on ESR violations, e.g. the pattern and magnitude of the violation, the identification of perpetrators and victims, for instance? Is there value-added in designing a prosecutorial strategy for ESR violations in particular, including the possibility of international prosecution, e.g. under the Rome Statute? [Large-scale corruption, on the other hand, is clearly susceptible to prosecution.] Or should the investment be in building the capacity to identify specific impacts of the violation, e.g. if “minimum core obligations” were breached, what is the consequence of that breach? This approach obviously has implications on what reparations policy will be, which then brings up complex questions around the design and prioritization of reparations measures.

How relevant is an approach to transitional justice that does not engage with ESR violations and ES issues?

My former ICTJ colleague, Paige Arthur, argues that “the de-radicalization of social movements”, “concomitant ideological shift in favor of human rights” and the “end of the Cold War” led to the emergence of the field of TJ. She says that the “the global decline of the radical Left… had direct repercussions for the human rights movement, as many on the Left abandoned the language of class warfare to describe state violence in favor of the language of human rights.” Accepting this depiction of the history of TJ, how has this assumption become irrelevant over time given (a) the number of TJ experiences involving transitions to peace (or at least to peace negotiations) rather than necessarily to democracy and (b) the more recent post-dictatorship paradigms where the shift to democracy has taken place and redress for ESR violations are as urgent and as clear as grievances involving physical integrity violations? A related question would be whether the ideological assumptions of those who resist or have reservations about an ESR engagement for TJ in fact prevent TJ from becoming or staying relevant?

Large-scale corruption is by its nature massive and systematic and causes widespread harm and suffering. It is an obvious area in which TJ notions about accountability and impunity apply.

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There seems to be no cogent conceptual argument for the exclusion of large-scale corruption from the scope of a TJ process, particularly in a post-dictatorship context. I have always argued that in dictatorships, corruption and repression are mutually reinforcing abuses. Most of the objections have been technical in the sense that TJ mechanisms would get ‘overloaded’ and that these mechanisms have no inherent capacity to deal with corruption. These arguments are flawed and there are a number of examples that already demonstrate the actual and potential gain in linking accountability for corruption to TJ mechanisms.

An even more compelling and practical reason to address corruption in TJ is the strategic importance of asset recovery. Again, in this case, experience ought to overcome conceptual objections (especially since those objections precisely make TJ irrelevant). Resisting the effort to link TJ to asset recovery could very well contribute to reinforcing not just impunity for corruption but impunity for human rights violations in general.

Vetting as a means of institutional reform has been normally associated with police and security agencies and, in some cases, criminal justice institutions.

Consistent with a TJ approach that focuses on civil and political rights violations and violations of physical integrity, vetting has taken place mostly within security and criminal justice institutions. This is certainly a legitimate response to the role of those institutions and officials in human rights violations. In some cases, vetting has taken corruption into account. In that sense, there is an effort to incorporate that economic issue within TJ. But there is no consistency of approach that considers corruption as a basis for conducting vetting in security and justice institutions, rather than applying the corruption standard to a larger set of institutions implicated in the abuses of a regime or committed during a conflict.

Economic and fiscal policy leading to ESR violations as a subject of TJ mechanisms

Egyptian activists named the Mubarak-era former Egyptian finance minister as among those who should be held accountable for fiscal policy that they blame for massive unemployment and lack of access to social services. (He was charged and convicted of corruption but fled to the UK, where he has not been extradited.) Should those who conceive of or decide on macroeconomic policy that is seen as causing ESR violations be held accountable in the same way that “persons most responsible” for physical integrity violations who are tried and punished? Questions of causality and intent will come up; unlike corruption as an economic crime, good faith is a plausible claim. But should it still hold where there might be a correspondingly plausible claim that the obligation to pursue the ‘progressive realization’ of ESRs was violated by a specific State official?

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Jacky Devis1

Economic and social issues of transitional justice

Economic and Social issues

The origin of internal conflict frequently is based on economic and social inequalities. In order to enhance the chances of success of TJ mechanism, socio-economical issues have to be addressed.

On the one hand, conflict originated by social issues includes all types of discrimination; class, caste, ethnicity, race and religion, as seen in Rwanda, Bosnia and Croatia among others. On the other hand, discrimination is frequently linked to economic marginalization and monopolization of power like in Chile, Colombia, Argentina, and Guatemala.

TJ mechanisms can influence change by addressing the origin of the problems through, for example, Truth and Reconciliation mechanisms where it is recognized that the victim was targeted because of their ethnic or social group and where this recognition hopefully will prevent repetition.

Legacy

If TJ mechanisms work well, the legacy of the marginalised and the discriminated can be significant and in turn it is likely to translate into economic progress. However, TJ should focus on the outputs of the mechanism; people judged and punished, victims returned to their homes, truth being told etc. TJ should not lose focus and divert in the hope that the outcomes are going to change social and economical problems.

Apart from the legacy of the affected community, TJ mechanisms could be looking at promoting and documenting lesson learnt in order to prevent repetition of these crimes and developing early warning triggers within the communities affected.

Regarding the question of how socio-economic issues specific to TJ can be distinguished from general problems surrounding the violation of economic and social rights, I would rather ask whether these issues can be distinguished at all. Are they really separate or different? I do not think that they are in any way different.

Dalits or untouchables are marginalized in many countries in South Asia and deprived of access to education, employment, clean water or access to justice. Nepal agreed to a peace process and the interim Constitution includes clauses that forbid caste discrimination. There is already written legislation to punish this type of discrimination but at grass root level there has been no implementation as these attitudes are integral to cultural practices and traditions.

Donor governments can get involved with local communities to combat discrimination in parallel or as a response to recommendations made by any of the TJ mechanisms. Marginalization of minorities like Dalits is an accurate example of a problem that contributed to the issues in Nepal that lead to a ten year civil war.

Example of UK engagement:

In Nepal the British Embassy supports the work of the Department for International Development (DFID) in promoting the inclusion of Dalits and raising awareness of their situation. DFID provided support for a consultation exercise which brought together 235

1 This paper was written to reflect the personal opinions of the author and does not represent the views of the FCO.

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grassroots NGOs, including organizations representing Dalits’ rights, to assist in the preparation of a shadow report for Nepal’s Universal Periodic Review at the UN’s Human Rights Council in January 2011. DFID also funded a Dalit representative to attend the review session to gain first-hand exposure to UN mechanisms.

DFID’s adoption of the Gender Equity and Social Inclusion (GESI) approach ensured that the benefits of UK developmental assistance have reached Dalits and other marginalized groups. Under the Skills Program, incentives for private sector partners to target Dalits and Janajatis, meant that 85% of the 9911 trainees were from economically poor and socially disadvantaged groups (2009/10 figures). In the Rural Access Program, 18% of the 14,389 beneficiaries are Dalits (2011 figures). Among the 286,904 beneficiary households of the DFID Nepal funded Community Support Program, 36% were from the poorest and excluded communities (2010/11). All local development programs follow the Government of Nepal’s operational plan which includes a 15% budget provision for excluded groups at the district and village level. Through the Enabling State Program the British Embassy provides support to Dalit civil society organizations which includes support to the NGO federation to improve access to quality education services and economic opportunities for poor Dalits.

The British Embassy also funded a female participant from the Dalit community to attend the Advanced Geneva Training Course on International Law and Advocacy. The participant learnt about the United Nations’ human rights procedures, standards and institutions and attended a UN Human Rights Council session on minority issues raising her awareness of how minority issues are dealt with within the UN. In partnership with the International Commission of Jurists, the British Embassy provided skills development training for Dalit lawyers and workshops and training on Dalit issues. The British Embassy has also commissioned a short documentary, ‘Voices of Nepal’, which recounts the key concerns of Nepalese human rights defenders, including Dalits

It is encouraging that the current interim Constitution introduced or confirmed a number of provisions to support social justice for marginalized groups.

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Pilar DomingoThe debate on the boundaries of transitional justice remains unresolved. Underlying the disagreements are issues about the definition of TJ itself, and about the objectives that processes that fall within the definition pursue and obtain.

Given that violations of political and civil rights are often closely related to the protection of social and political orders in which social and economic rights are undermined, the connection between TJ and development processes/outcomes seems conceptually justified. The legacies of violence that TJ processes address may be deeply related to structures of social and economic inequalities that benefit a particular power balance and set of interests. For this reason the purpose of the event, which is to outline a research agenda which explores the connection between TJ and social and economic issues, is important.

However, there is a need to be cautious what is attributed to the term TJ, and how it is distinct from other discussions about the historical evolution of social justice, and the processes of political contestation and forms of resistance that feature in this history. Violence in pursuit of social change, or as an expression of resistance to change, is typically deeply enmeshed in histories of contestation over the distribution of political, social and economic resources. A study of the social and economic issues that pertain to the conceptual discussion about TJ must therefore draw on older analyses of the role of violence in shaping distributional and developmental outcomes and the renegotiation of underlying political settlements.

Notwithstanding these caveats, TJ processes, in the degree to which they contribute to unveiling structures of exclusion and discrimination which are at the root of, or related to experiences and legacies of violence and human rights violations, potentially create structures of opportunity to enable (transformative) change towards more equitable and socially just outcomes.

But this is a matter of empirical observation. A recurrent confusion in the scholarship on TJ is the recourse to normative judgments about what TJ should achieve as opposed to what we know about: first, how histories of human rights violations are intertwined with structures of inequality, exclusion and discrimination; and second, what the impact of different TJ processes and experiences (which address these histories) has been on actually altering structured inequalities, practices of discrimination, or improving the realization of social and economic rights.

Therefore, it is important to maintain the distinction between the normative, the theoretical and the empirically informed analysis of TJ more generally, and how it relates to social and economic issues more specifically. Indeed, as the concept paper notes, there has been more conceptual and theoretical work done on connecting the relevance of TJ to development outcomes, but the question of actual impact remains fundamentally understudied. Regarding the latter question, we should also distinguish between research that focuses on explaining the trajectories of violence, human rights violations and social injustice, and on research that empirically observes how different mechanisms/experiences of TJ have impacted on processes of social and economic change.

To my mind these distinctions need to be present when we consider the questions that have been set in the concept note.

What are the economic and social issues that are relevant to TJ?

- Issues of inequality, exclusion, discrimination that are at the root of the legacies of violence that TJ processes aim to address.

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- In what ways, have different experiences of TJ contributed to addressing these? What factors explain the effectiveness or limitations of different TJ mechanisms in enabling political or social change that would alter such structured inequalities?

- It is important to distinguish between different TJ processes and their mandate (retributive justice, truth-telling and recommendations that follow from this, restorative justice etc.) noting the clear importance of context specificity, and political economy factors that shape the possibilities and scope of TJ. This also includes issues about local, national and global levels of TJ politics, and how these affect how social and economic issues feature.

What are the benefits of broadening TJ mechanisms in this way, and what are potential drawbacks?

How can the inclusion of socio-economic factors be achieved?

The following issues somewhat respond to the above questions.

There is a need to maintain a clear distinction between the normative discourse of TJ, and empirical observations of what different TJ mechanisms and processes actually obtain (noting the enormous variation in country experiences and possibilities), and what expectations are created. A research agenda that emerges from this discussion would benefit from such a distinction. In that light these questions might need to be rephrased.

Noting this, however, much more research is needed on identifying on a case by case basis how different TJ experiences have enabled or contributed to windows of opportunity for strategic action by different stakeholders, to address structures of exclusion and discrimination that underlie legacies of violence. Such windows of opportunity will vary.

Research can focus on particular patterns of exclusion and discrimination which remain understudied so far, both regarding how they feature in the legacies of violence that TJ mechanisms address, and how TJ in turn has featured in the political stories of change that follow periods of violence, conflict or systemic human rights violations where social and economic issues are addressed. The interface with wider political process of regime transition, constitutional and institutional reform, peace-building, state-building and local processes of reconstruction is important for this research.

Understanding factors of political economy through qualitative analysis is important, and brings a discussion of power relations to the fore-front.

How can socio-economic issues specific to TJ be distinguished from general problems surrounding the violation of economic and social rights?

This is a key theoretical puzzle that deserves consideration, and is at the heart of the discussion about this research agenda, but it is clearly related to wider debates about the boundaries of TJ.

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Zinaida Miller(DRAFT--August 2012—Please do not quote or cite without permission of the author)

In recent years, debates over the incorporation of socio-economic issues into transitional justice have become increasingly common. Yet we are only beginning to clarify the parameters of discussion or the definitions of terms. In particular, I would suggest that a fundamental division persists between those interested in structural change and those suggesting a more minimalist rights-based intervention. This in turn highlights a series of disagreements over the appropriate role of transitional justice mechanisms and experts in re-shaping or re-conceiving societies and states at a broad level. Despite the fundamental nature of these arguments, however, the primary tension remains largely submerged, hidden by more familiar arguments over institutional capacity, international priorities, and hierarchies of legal or illegal evils. In order to bring this deeper conflict to the surface, we must separate the substantive issues raised from the justifications for their relevance and the explanations for their current or necessary exclusion from the field.

First, the substantive issues: surveying the literature and institutions suggests that the relevant socio-economic issues center on plundering of natural resources, income and land distribution, poverty and inequality, corruption, and deprivation of livelihoods and health. In some cases, these concerns are articulated mainly as violations of social and economic rights, while in others they are viewed as wider historical or structural phenomena.

Justifications for including these topics in the work of transitional justice might be classified in four categories: (1) “root causes”; (2) distribution or equity; (3) discursive limitations; (4) survivors’ preferences.2 The first suggests that conflict will reignite if its fundamental causes—such as resource deprivation, inequality, and land—are left unexplored. This argument is largely instrumental or consequentialist; the goal is the end of conflict, particular factors contributed to that conflict, and thus no intervention that neglects these concerns can be successful. The second argues that questions of redistribution (or distribution) have been ignored in service of a narrow concept of justice that dealt neither with structural violence prior to the conflict nor maldistribution after it. These arguments tend to rely—explicitly or implicitly—on broader philosophical or political theories explaining a commitment to equality or distributive justice. The third line of argument suggests that the discursive power of transitional justice institutions will construct a limited and problematic narrative in the absence of socio-economic inquiries. A discursive approach examines not only the instruments or the underlying theory of the field but the immaterial and material effects of neglecting material questions. By definition, this position attributes a particular power to transitional justice institutions beyond the immediate effects of report-writing, prosecutions, or recommended reparations. The last justification argues ‘on behalf of’—or, more strikingly, relies on the voices of—victims who prefer economic relief to narrative catharsis or prosecutorial excellence. In recent years, as “participation” and “local ownership” have become the rallying cries of development and peacebuilding, the concept of more directly including the voices of those affected by transition has become increasingly popular.

This is, of course, a necessarily brief survey of a complex set of responses. More importantly, we should pay attention not only to the questions of veracity arising from these arguments (for example, whether “root causes”, particularly economic ones, actually (re)ignite conflict), but to the contradictions or differences among them. For example, the normative commitments or analytical reasons for arguing from ‘root causes’ do not necessarily match those for

2 For a related and useful taxonomy of many of these issues, see Lars Waldorf, “Anticipating the Past: Transitional Justice and Socio-Economic Wrongs,” 21 SOCIAL AND LEGAL STUDIES 171 (2012).

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supporting redistribution. Similarly, in addition to questions about the method or capacity for including survivors in developing institutions around survival, the articulation of needs in the aftermath of violence are unlikely to be the same among different groups within the population. Not only has there been reluctance to credit victims/survivors with a clear understanding of the broader situation (too often attributing to them an inability to see the larger societal need for institutions like truth commissions), there is no guarantee that the immediate interest in economic relief matches a broader interest in, for example, redistribution or distributive justice.

Current explanations relating to the field’s exclusion of socio-economic inequality, development and structural violence might be classified in the following manner: (1) the “human rights critique”, arguing that transitional justice follows the bias of human rights in focusing on civil and political rights at the expense of social and economic ones; (2) the “transition critique”, arguing that the influences on the field of the late-twentieth century transitions and neoliberal peace-building have biased the field in favor of narrow interventions; (3) the “reparations critique”, suggesting that the focus on reparations as the solution to economic questions in transitional justice has been insufficient in both concept and implementation; and (4) the “capacity critique”, arguing that regardless of any ideal-type wish for broad inclusion, the reality of institutional limitation makes a broader transitional justice program largely impossible. Of course, these critiques can be and are used in concert with one another.

I would like to suggest a few other possible explanations that highlight the tension over possibilities for structural change, some of which build on those I have listed above: first, following the “human rights critique”, one might argue that the focus on civil and political rights not only echoes the biases of the human rights field in its internal hierarchy but opens up broader questions about the relationship between human rights law and language and transitional justice. Among others, the preference for an individualistic and civil/political rights agenda has dovetailed with a liberal peace model that many have argued suits the priorities and preoccupations of the global North – in particular, the implementation of a neoliberal economic model in emerging economies –at the expense of less powerful countries and groups.

Second, explaining the neglect of socio-economic issues reveals the need for an examination of transitional justice as an ‘enterprise’ or ‘industry’ with close relationships to centers of global power. The production and transmission of knowledge on both rights and justice can be argued to mimic global power inequities, a problem that has not yet been overcome in either the human rights or transitional justice fields. For example, institutional commitments to both local ownership and a particular transitional justice model may clash if the local population turns out to prefer their transition without the now-standard tools of ‘justice’.3

Third, in order to better understand the neglect of socio-economic issues, questions of who benefits from transition internally, what role societal elites play, and whether political change operates as reform or revolution become crucial. If, as some argue, transition itself is a fundamentally reformist project, one which sometimes maintains and sometimes reproduces a societal elite, then structural change at the socio-economic level—particularly redistribution—appears unlikely.

3 See, e.g., Peter Uvin and Ann Nee, “Silence and Dialogue: Burundians’ Alternatives to Transitional Justice,” in LOCALIZING TRANSITIONAL JUSTICE: INTERVENTIONS AND PRIORITIES AFTER MASS VIOLENCE (Rosalind Shaw, Lars Waldorf, and Pierre Hazan, eds., 2010); Rosalind Shaw, “Memory Frictions: Localizing the Truth and Reconciliation Commission in Sierra Leone,” 1 THE INTERNATIONAL JOURNAL OF TRANSITIONAL JUSTICE 183 (2007).

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In light of the critiques categorized above, some of the institutions of the field—most often truth commissions—have begun to incorporate the language of economic rights or economic violence. Where South Africa’s Truth and Reconciliation Commission was famously criticized for ignoring the beneficiaries of apartheid in favor of focusing on the perpetrators, Sierra Leone’s TRC was recognized for incorporating discussion of economic causes and consequences of conflict.

Strikingly, the language of the Report discusses these causes in part through language familiar from the international policy community: the TRC found that “it was years of bad governance, endemic corruption and the denial of basic human rights that created the deplorable conditions that made conflict inevitable”.4

Perhaps the most common response to these critiques has been the suggestion that cooperating with or deferring to the neighboring field of development may resolve the questions raised with regard to transitional justice. When critiques were made with regard to the failure to address inequality, the inclusion of development as a policy field within or in cooperation with transitional justice has become an increasingly familiar refrain. Many have begun to examine the relationship between development and transitional justice in terms of the import of the former into the latter and the reflection of each on the other. In some readings, the inclusion of development strategies in transitional justice opens up new possibilities for substantive justice, sometimes because transitional justice itself is assumed to expand development further and sometimes because development is assumed to answer concerns about inequality and poverty. Addison suggests that transitional justice “speaks to a conception of development rooted in social transformation, not just technocratic endeavor. In speaking of full citizenship, transitional justice reinforces the idea that the poor have agency, that they are not passive actors whom the development process “acts upon” but people who can engage in “good struggles” to end their oppression and poverty.”5

These are, of course, admirable objectives. Yet the temptation to attribute specific or unified characteristics to either field (development or transitional justice), risks reducing complex institutional and academic arenas into simple ideal types. In addition, the question of how the particular expertise of development intersects with that of transitional justice creates new complexities with regard to international involvement in transitional societies. Others have pointed out that transitional justice and development may be less different and complementary than, in fact, similar and self-reinforcing; Colvin suggests that both discourses are invested in “planning” (a conception of the project as a set of objectives which be effectively accomplished through the “right” tools and systems) and ‘purity’ (the notion of “recovering lost worlds” – whether based on pure market logic or the pure reconstruction of social cohesion). 6

4 The Final Report specifies in particular the effects of a single-resource economy (diamonds) in which “[p]olitical power became a means to economic wealth and the predatory accumulation of the ruling elite led to the acquisition of state offices and resources for personal gain. This led to the ‘functional contraction’ of Sierra Leonean leadership, as it could no longer provide services to the people.” SIERRA LEONE TRUTH AND RECONCILIATION COMMISSION REPORT, Vol II, Para. 41. 5 Tony Addison, “The Political Economy of the Transition from Authoritarianism”, in TRANSITIONAL JUSTICE AND DEVELOPMENT 114 (Roger Duthie and Pablo de Greiff, eds., 2009).6 Colvin’s point is less focused on the borrowing by one from the other and more on the contradiction between the similarities he sees between them and the frequent vision of the two as in tension with one another. Christopher Colvin, Purity and Planning: Shared Logics of Transitional Justice and Development, 1 INTERNATIONAL JOURNAL OF TRANSITIONAL JUSTICE 2 (2008). In contrast, Ames and Reategui argue that “transitional justice and human development have their own respective spheres of action that—although they may overlap—are fundamentally different.” Rolando Ames Cobian and Felix Reatagui, “Toward Systemic Social Transformation: Truth Commissions and Development”, in TRANSITIONAL JUSTICE AND DEVELOPMENT 159.

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Despite the understandable popularity of development as a nexus point for transitional justice, questions remain. Importing language or practices from neighboring fields may have unpredictable or unintended effects. First, using “development” as a solution may conflate different critiques or parts of one critique. Creating mechanisms to better understand the root causes of conflict does not necessarily account for the socio-economic re-configuration of a society after a long civil war. Land reform in many circumstances assists either the population dispossessed before conflict or those displaced and dispossessed by it. The relationship between development strategies and justice mechanisms has sometimes been established through supportive or competitive material links (transitional justice institutions both require a certain level of resources to operate and may divert resources from other projects) or through neoliberal peace-building strategies. In the case of the latter, transitional justice could be viewed in conjunction with the ‘rule of law’ area that often translates to issues of property and contract that can anchor a new market economy. As in peace-building more broadly, a focus on resource scarcity may obscure the more fundamental question of resource inequality. As a result, such an explanation is more likely to lead to a focus on reparations (to materially assist victims) rather than on redistribution (to reconfigure unequal society).

Second, answering the critique through limited change or recognition can obscure the same structural or systemic issues about which the critique was originally lodged. For example, the role of international or foreign forces in constructing or maintaining inequality or conflict, or the legacies of colonialism may not be addressed. Although arguments have been advanced with regard to reparations for colonial-era atrocities, it can be difficult to imagine or to implement mechanisms for recognizing colonial contributions to contemporary structures of conflict and inequality – although truth commissions have increasingly paid attention to the broader context.

Questioning the role of socio-economic issues offers the opportunity to rethink the field as a whole, not just in the manner of adding more tools or topics but in re-conceptualizing the fundamental ideas and methods. Does the notion of transition retain analytical significance? Has it been a misnomer from the outset of the field? How can transition be measured, timed, or ended? Should the paradigm remain largely domestic in orientation (a transnational conception of justice practiced within a state-centric paradigm) or will it increasingly incorporate the responsibilities of external parties, particularly within this socio-economic sphere? Does the inclusion of socio-economic questions merely mean their insertion into the current transitional justice agenda (more tools for the proverbial toolbox) or might the agenda itself change in light of growing demands to focus on socio-economic questions?

Many argue that burdening transitional justice with an ever-growing list of topics will merely dilute, undermine, weaken, or threaten the field and its institutions. This argument clearly has merit. The parameters of investigation remain unclear, resources are limited, and transitional justice experts tend to specialize in topics other than economics, growth, or development. Yet at the same time, we must imagine the decision not as a neutral status quo in comparison with a radical change in the field but rather as two types of societal intervention. Focusing only on civil and political rights issues, on individual culpability, or on gross violations may have the virtue of apparent clarity, but the structural questions, internal biases, and multiple inequalities cannot be easily separated from the core concerns of the field.

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Ismael MuvingiI would start the discussion from the second question i.e. “What are the benefits of broadening TJ mechanisms... and what are potential drawbacks?” I do so because I think the question of whether TJ should incorporate socio-economic issues is inherent to the first question which in turn goes back to what are the objectives of TJ.

Benefits

TJ is a field of practice and study whose principles and measures are invoked and applied in widely divergent situations. TJ is not uncontested in its definition but broadly stated; TJ seeks to clarify, expose and come to terms with repressive, violent and abusive pasts, so as to foster sustainable future peace. There is a fairly broad agreement that coming to terms with the violent past entails dealing with the etiology of the violence; its causes, origins, evolution and implications. As a discursive project, TJ defines the issues that ought to be discussed and addressed and those issues are the ones that get embodied in the mechanisms. My point is that TJ is not a set of neutral mechanisms that will achieve justice and peace; it is definitional as much as it is practical. The mechanisms are the means but they also define the issues and so the purview of those mechanisms becomes important.

Thus far, the field has overwhelmingly located “transition” in the political and legal realm, and defined wrongs primarily in terms of physical violence. There has not been much interrogation of the causes and origins of the physical violence or the goals of those who wield and utilize political power to repress others. Few if any oppressors practice violence and repression purely for the pleasure of it and few societies just kill each other because they are different. Each actor is motivated by a desire to achieve certain ends. If TJ is to have the possibility of addressing, and redressing the root causes of conflicts so that they do not recur, then its mechanisms have to go beyond asking “what happened” to investigating “why” it happened.

Scholarship informs us that there is a correlation (at the very least) between poverty, inequality and exclusion on one hand and conflict on the other.7 Scholarship has also advanced that apparent ethnic, religious and racial causes of conflict often mask the economic origins of conflicts.8 If structural violence i.e. inequality and economic mal-distribution has a causal relationship with conflict, then any discussion of wrongs and redress should logically include socio-economic issues.9

Thus far however, the mechanisms of TJ have focused almost exclusively on accountability and redress for violations of civil and political rights.10 Trials have predominantly followed the retributive tradition, addressing individual accountability and punishment. Even the truth commissions that have paid some attention to economic factors, the commissions have taken the form of individual narratives of physical violence mostly by individual perpetrators and not an interrogation of the systemic socio-economic factors. Yet as Mamdani points out in

7 See for example Paul Collier (lead author) with contributions from V.L. Elliott, Havard Hegre, Anke Hoeffler, Marta Reynal-Querol, and Nicholas Sambanis, Breaking the Conflict Trap: Civil War and Development Policy World Bank Publications, Jul 31, 2003 - 240 pages. Frnces Steart, Horizontal Inequalities and Conflict Understanding Group Violence in Multiethnic Societies Palgrave Macmillan (24 April 2008)8 Bernard Wood, “Development Dimensions of Conflict Prevention and Peace-building: An Independent Study Prepared for the Emergency Response Division, UNDP, New York 20019 On structural violence see Johan Galtung, “Violence, Peace and Peace Research” Journal of Peace Research 6 (3) (1969): 167 - 19110 Naomi Roht-Arriaza and JavierMariezcurrena, ed., Transitional Justice in the Twenty-first Century:Beyond Truth versus Justice (Cambridge: Cambridge University Press, 2006)

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South Africa as an example, the violence of apartheid was aimed not at individuals as such but at entire communities with the objective of conquest and dispossession and the establishment of racialized privilege.11 Similarly, it is fairly clear that the Rwandan genocide was a culmination of grievances over land, resource distribution and access to power over decades, with identity as the marker of inclusion or exclusion, yet the post-genocide TJ processes have not been inclusive of discussion of the socio-economic inequities.

Transitional justice mechanisms signify the key issues related to past violence and thereby what issues deserve to be addressed. Silence on the socio-economic dimensions of violence, exclude them from the discourse and from attention for correction. The benefit of transforming TJ mechanisms such that socio-economic issues are brought to the table is that the root causes of most conflicts will be confronted and discussion of reparative measures will be more comprehensive.

There is a benefit too for the field of TJ itself. As Rama Mani posed the question “Can transitional justice (TJ) today afford not to concern itself directly with social injustice and patterns of inequality, discrimination and marginalization that were underlying causes of a conflict and that inflicted major suffering and victimization on vast swathes of a population?”12 If TJ does not address socio-economic issues it will have little relevance to the economically exploited and socially impoverished societies who form the bulk of populations TJ is concerned with.

What are TJ relevant issues?

The economic and social issues that are relevant to TJ are already implicit in the above discussion. Inequality conflated with poverty and exploitation is a huge trigger for grievance. Inequality is often a factor of the relationship between the distribution of power and resources. So far, poverty and inequality have featured in trials or truth commissions as the background against which people get killed, disappeared, tortured or repressed. What should have been relevant issues for interrogation in the South African TRC for example were; the role of business in apartheid, the structure of the resulting society and the continuing systemic disparities inherited from the past. As it is, the focus on civil and political rights froze disparities and hierarchies of South Africa in place and allowed for the entrenchment of economic inequality.13 The TRC would not have had the wherewithal to resolve those issues, but it would have opened the discourse on a problem many now see as translocated violence from the political to the criminal sphere. The impact of unjust advantage from the past is relevant for social and economic relations under the new regime.

Land and other resource redistribution is a thorny issue in many societies. Land straddles social, cultural, economic and political realms. Land is also tied to other resources such as mineral rights and water. Land continues to play a role in conflicts situated in sites of former colonial conquest. As we are finding out in Latin America, the issue will not go away decades after political transition.

The role of external actors; neighboring states and powerful states, multinational corporations, international violence for-hire firms and other international organizations that have economic interests in conflict zones, needs to be part of the TJ discourse. These actors contribute to the conflicts and they should be subjected to the same scrutiny as internal actors.

11Mahmood Mamdani, “The ruth According to the Truth and Reconciliation Commisssion” in Ifi Amadiume and Abdullahi A. An-Na'im, The Politics of Memory: Truth, Healing and Social Justice Zed Books 2000 At 17912 Rama Mani “Editorial: Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development” The International Journal of Transitional Justice, Vol. 2, 2008, 253 – 265 at 25313 Mutua, Makau W., Hope and Despair for a New South Africa: The Limits of Rights Discourse (1997). Harvard Human Rights Journal, Vol. 10, pp. 63-114, 1997

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Reparations are probably the socio-economic measure that has been most discussed both in academia and practice. “Reparation” is sometimes used very broadly to encompass any initiative that seeks to repair the damage. Elements of reparation include restitution, rehabilitation, compensation for pecuniary loss, but as defined by the Permanent Court of International Justice, “reparation must, so far as is possible, wipe out all consequences of the illegal act, and re-establish the situation which would, in all probability, have existed if that act had not been committed.”14 In the Lubanga trial, the ICC Pre-Trial Chamber emphasized the centrality of reparations to the success of the court.15

Zinaida Miller has sounded alarm bells on the focus on reparations as the economic redress to conflict.16 The worry is that the focus of reparations has been on identifying individual victims or societies and compensating them for wrongs done or losses incurred. While that is desirable and necessary, it needs to be recognized that reparations do not redistribute wealth or power, nor do they eliminate the systemic forces that perpetuate inequality. I return to reparations below on the “how” of inclusion.

How can the inclusion be attained?

Inclusion can most effectively be attained through the integration of socio-economic issues into the discourse of TJ. That would place socio-economic on the table for redress and initiate long term reparative measures.

Reparations

Some forms of inclusion already exist in practice. The import of reparations into international criminal law through the ICC has been a novel and encouraging development, but given the limitations of the Court’s enforcement power and the circumscription of its reparations power, expectations have to be modest. Article 75 of the Rome Statute confers on the court the power to develop reparations principles, order reparations and the forfeiture of the proceeds of crime. Part of the limitation lies in the nature of criminal law per se, in that its primary focus is the protection of society from the actions of individual actors and not on structures of violence. Article 25 (1) of the Rome Statute confers on the court “jurisdiction over natural persons pursuant to this statute.” Artificial persons such as corporations and international organizations that have become part of the landscape of human rights violators escape the jurisdiction of the court.

Regional bodies already exercise jurisdiction that allows for the award of reparations. The Inter-American Court of Human Rights has ordered compensation for victims so as to ensure that the consequences of violations of rights were remedied.17 This has included orders for states to implement housing programs for example.18 The reparations have been made in the

14 Factory at Chorzow (Germany v. Poland), 1928, Permanent Court of International Justice (P.C.I.J.) (ser. A) No. 17 (Sept. 13) page 4715 The Prosecutor v. Thomas Lubanga Dyilo. Case No. ICC-01/04-01/06 Decision on the Prosecutor’s Application for a Warrant of Arrest (10th February 2006) paragraph 13616 Zinaida Miller, “Effects of Invisibility: In Search of the 'Economic' in Transitional Justice” International Journal of Transitional Justice Vol. 2, no. 3 page 284 ff.17 Inter-American Court of Human Rights Case of the Pueblo Bello Massacre v. Colombia Judgment of January 31, 2006 (Merits, Reparations and Costs) (IACtHR, 31 Jan. 2006) available at http://www.worldcourts.com/iacthr/eng/decisions/2006.01.31_Pueblo_Bello_Massacre_v_Colombia.pdf18 Inter-American Court of Human Rights Case of the Pueblo Bello Massacre v. Colombia Judgment of November 25, 2006 (Interpretation of the Judgment of Merits, Reparations, and Costs) Paragraph 41 available at http://international.lawsociety.org.uk/files/case%20of%20the%20pueblo%20bello%20massacre%20v%20colombia%20nov%202006.pdf

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form of pecuniary damages and have included loss of property,19 loss of earnings, loss of support as well as medical and funeral expenses .20

The ICC could also order collective rehabilitative measures and Rule 98 (4) of the ICC Trust Fund provides for the engagement of an inter-governmental, international or national organization that could be tasked with the implementation of such measures.21 The ICC also has the advantage of the obligations imposed on State Parties by Articles 93 (1) and 109 to assist the court to identify, trace, freeze or seize proceeds, property and assets involved in crimes. The weakness lies in the dependence on state parties some of who will be perpetrators or complicit in the commission of crimes.

An element of restitution especially relevant to cases of internal repression and exploitation is the externalization of resources by leaders. Examples include Sani Abacha of Nigeria, Muammar Gaddafi of Libya, Mobutu Sese Seko of DRC and Robert Mugabe of Zimbabwe. When such repressive regimes that have stolen from their countries are finally deposed, not much is heard about the resources they have pilfered. The resources are invariably squirreled away in developed democracies which prove reluctant to let go of the ill gotten treasures. TJ should target the return of resources to countries from which they have been plundered. Social movement advocacy could buttress international litigation on this.

Prosecution

In numerous cases of violence, resource extraction has been implicated interchangeably as a cause or a facilitator of fighting. The extraction of and trade in timber, diamonds, oil, uranium, coltan and other lucrative resources, from conflict zones has been placed in billions of dollars.22 In countries such as the Democratic Republic of Congo (DRC), Liberia, Sierra Leone, Kuwait, Cambodia, the wars have exacted a devastating toll in human lives, trauma and damaged economic structures that require billions in recovery and reconstruction in addition to the environmental degradation that almost invariably accompanies extractive industries.23 As concluded by the UN expert panel for the DRC, there was in the DRC a clear correlation between illicit armed actors and resource extraction.24

Despite the carnage, there has not been much attention paid to the prosecution of resource plunder. There is currently no international criminal statute that criminalizes resource plunder, but the ICC’s Rome Statute does outlaw pillage of public and private property.25 Furthermore, the ICC is empowered to impose fines and order forfeiture of proceeds derived from pillage. Lundberg has argued that this provision should and must be used in exacting justice on the economic crime of resource plunder.26 The argument draws on a long legal tradition of the

19 Inter-American Court of Human Rights Case of the Ituango Massacres v. Colombia Judgment of July 1, 2006(Preliminary Objections, Merits, Reparations and Costs) Case Number 148 para 17420 Case of Ilhan v. Turkey (Application no. 22277/93) Judgment 27 June 2000 paragraphs 107-109 available at http://sim.law.uu.nl/sim/caselaw/Hof.nsf/d0cd2c2c444d8d94c12567c2002de990/14c8113d19a6470fc125690d003e78d4?OpenDocument. Also Aksoy v. Turkey European Court of Human Rights 1996-VI, no. 26 Application No: 21987/93 21 International Criminal Court, Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (2000)22 Michael A. Lundberg, “The Plunder of Natural Resources During War: A War Crime?” Georgetown Journal of International Law Volume 39, Issue 3 Spring 2008, 495-525 at 49523? Paul Collier and Anke Hoeffler, “Greed and Grievance in Civil War” May 2000, World Bank Policy Research Working Paper No. 2355 and a host of other studies24? Group of Experts on the Democratic Republic of the Congo “Final report of the Group of Experts on the Democratic Republic of the Congo,” Publisher: United Nations 7 December 2009 available at http://allafrica.com/view/resource/main/main/id/00011978.html25 Rome Statute of the International Criminal Court Articles 8(2)(b)(xvi), 8(2)(e)(v) July 17, 1998, 2187 UNTS 96, 9726 Michael A. Lundberg, “The Plunder of Natural Resources During War: A War Crime?” Georgetown Journal of International Law Volume 39, Issue 3 Spring 2008, 495-525 at 495

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prosecution of property based war crimes including The Hague Convention of 1907 (Articles 28 and 47) and the Geneva Convention (IV) (1949).

The imposition of economic penalties can be complemented with civil restitution. A major legal advancement on resource plunder accountability was the International Court of Justice’s decision holding Uganda responsible for the plunder of DRC resources by members of the Ugandan army.27

Needless to say, there are challenges to utilizing the ICC’s jurisdiction on pillage. There is no precedent for economic criminal prosecution and the burden of proof for pillage will be heavy. The elements of the crime include the expropriation of property with the intent to deprive the owner without his consent in the context of armed conflict. Determining the owner of natural resources can be complicated. The extraction of oil in Sudan for example was heavily associated with the war in the Southern part of the country, but holding the oil companies liable would be difficult as they were dealing with the de jure government of Sudan at the time. There would equally be difficult challenges in pursuing the government of Sudan on similar grounds; it was the government of all of Sudan at the time.

Redistribution and Institutional Reform

From the opening discussion on the desirability and advantages of including socio-economic issues, I obviously see redistribution and institutional reform as key to addressing socio-economic issues. The role of TJ is not to try and attain redistribution immediately in the aftermath of transition. Its role is to put redistribution issues on the table. The inequalities, the exploitation and impoverishment and the roles of external actors should all be part of the discourse of truth commissions. The current mechanisms should stop narrowing the range of issues and therefore precluding socio-economic issues from the post conflict reconstruction agenda.

Odious Debt and Future Mortgaging

It is morally repugnant to saddle former victims of abuse with the debts incurred by their abusers in furtherance of the abuse or violence and to hold them bound by resource exploitation rights given in exchange for military supplies used for their massacre. Yet the rules of state succession require that new governments must assume the obligations of their predecessors. As David C. Gray puts it, odious regimes marry abuse with “embezzlement of public funds, indulge in profligate spending on military and personality cults in order to preserve personal power, commit massive outlays to perpetrate atrocities, or unlawfully convert public and private property to advance programs of abuse.”28 In light of that, shouldn’t successor regimes be afforded the ability to disavow the odious debts of their predecessors?

The moral arguments for disavowing debts are quite compelling and are reinforced by the reality of most transitional situations. Invariably, transitional governments inherit economies laid to waste, scarce to non-existent social services, bureaucracies in disarray and empty state coffers. At the same time as they must urgently act to secure the peace, repair infrastructure and ensure stability. If they fail to honor the state’s liabilities to international investors and debtors, their credit rating falls and their access to much needed financing gets restricted. If they pay the debts first, they expend the very scarce resources needed for reconstruction.

27 International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) JUDGMENT OF 19 DECEMBER 2005 available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=51&case=116&28 David C. Gray “Devilry, Complicity, and Greed: Transitional Justice and Odious Debt” 70 Law & Contemporary Problems 137 Summer 2007 at 141-2

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Equally repugnant are contracts giving suppliers of military resources future rights to exploit natural resources for years into the future. The DRC is a classic example as recognized by the United Nations experts and UN resolutions.29 Unfortunately, the follow up has not been effective. As Mani points out, the International Financial and development institutions loathe to reopen the DRC contracts to scrutiny by fear of scaring away potential investors.30

There are challenges in disavowing odious debt. Most prominent are the dictates of the current global economic paradigm of free markets and the separation of politics from social and political factors. There are also the complications of assigning responsibility for odious debt. As Gray argues, tyrants and other abusers never act alone; in most cases they have the support of a significant proportion of the population, so why should the population be let off the hook?31 Equally compelling however, the investors and lenders are hardly ever blind to their complicity. Their loss would have an added benefit of encouraging and rewarding socially responsible investment.

TJ and non-TJ issues

Not everything falls under the purview of transitional justice. TJ is temporal but its boundaries are fluid and ill defined. There is no way of drawing discrete lines between initiatives for addressing the past and reconstruction. The processes will move at different paces. More realistically, TJ represents periods when there will be higher concentrations of TJ defined initiatives. Development per se, cannot be the subject of TJ for good reason. Development that is aimed at and benefits only some segments of society i.e. victims are likely to engender new resentments and new conflicts. In any event any attempts to implement development as transitional will be complicated if not impossible in internal conflict cases where the perpetrators and victims are integrated such as in Rwanda.

Conclusion

It is true, as has been pointed out by many scholars and commentators, that TJ mechanisms especially trials and TRCs are often overstretched and expensive, demanding ill affordable resources at a time when emerging societies need the resources to recover. However, the solution should not be to ignore critical socio-economic issues. The solution lies in shifting the focus and creating a balance between the retribution and the reparative. The TJ discourse and its mechanisms must and can include the identification of socio-economic factors responsible for the conflicts and recommend redress. If TJ continues to fail to address socio-economic issues, we will have a continuation of failed peace and/or the problematic phenomenon of post transition crime when frustration leads to the replacement of political violence with criminal violence.

29 Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo ( final report UNDoc. S/2002/1146 (October 2002) ) as well as the subsequent Group of Experts on the Democratic Republic of Congo. UN Security Council Resolution 1653 (2006) and UN Security Council Resolution 1804 (2008).30 Mani supra note 6 at 25831 Gray supra note 22

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Habib Nassar Few thoughts for the Essex September Seminar on TJ and economic and social issuesIt is no coincidence that Mohamed Bouazizi who has become the icon of the “Arab Spring” by immolating himself in Sidi Bouzid and sparking popular uprisings in Tunisia and across the region was not just protesting against police abuse, but against unemployment and poverty. While violations of civil and political rights, including serious abuses such as widespread torture, enforced disappearance and extra-judicial killing, have generated calls for justice and accountability across the region, addressing violations of social, economic and cultural rights as well as holding accountable those responsible for corruption have been at the center of the popular protests throughout the Middle East and North Africa (MENA) region.

While the UN Secretary-General in his December 2009 Guidance Note on the United Nations Approach to Transitional Justice stresses the need for transitional justice processes and mechanisms to “take account of the root causes of conflict and repressive rule, and address violations of all rights”, it is crucial for those designing and implementing TJ processes to receive concrete advice and practical guidance on how to incorporate economic, social and cultural aspects of past human rights abuses in TJ mechanisms. It is not sufficient to encourage national actors to consider the root causes of repressive rule and address violations of all rights, it is also critical to explore tangible ways to deal with ESCR and manage expectations about the potential of TJ to address these rights. In that regard, it may be useful to explore how TJ processes could complement rather than replace or compete with other policies and measures aimed for example at promoting economic growth and development, fighting corruption, recovering stolen assets, etc.

As a practitioner who has worked years on transitional justice in the MENA region, I would like to share a perspective from the field and a number of observations on the question of TJ and economic and social issues:

-Advice provided by international actors on TJ and economic and social issues has been more theoretical (and sometimes rhetorical or ideological) than practical and concrete. It is high time for such actors to move from theoretical and abstract notions to concrete and honest explanations of how each mechanism could address economic, social and cultural aspects.

-It appears critical to manage expectations about the potential for TJ to address economic, social and cultural aspects. Government and civil society actors in the MENA region have been struggling with this question. While there is political will to address the “violation of all rights”, there is no clarity on what TJ can address and what should rather be addressed through other policies. Things get even more complicated when dealing with problems that do not obviously constitute violations of specific human rights such as corruption. What violation are we talking about when it comes to corruption? Is the argument according to which corruption is a violation of article 2 of the ICESCR serious enough? Who is or are the victims of such violations? Beyond exposing corruption as a “root cause of a conflict or repressive rule” what can TJ mechanisms achieve that “regular” anti-corruption policies cannot? What would be the added-value of TJ mechanisms compared to regular anti-corruption policies?

-It is crucial to honestly explore the downsides of expanding TJ to include problems such as corruption and assets recovery. Do TJ mechanisms have the capacity to address such issues when dealing at the same time with gross human rights violations such as crimes against humanity and war crimes? Is there not a risk of equating such crimes with economic crimes such as embezzlement, bribery, etc.?

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In the presence of competing demands and priorities (basic needs, employment, wages, etc.) TJ may appear as a “too expensive” project that the country cannot afford. This has alas been illustrated by the resignation in late July of the Tunisian Minister of Finance to protest against the allocation of a significant amount of money to pay compensations to former political prisoners. However, some have also criticized the compensation measures as a political decision to provide assistance to victims belonging to a specific political party.

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Camilo SanchezThe traditional conception of accountability assumed by the ideology of transitional justice has been one that seeks, from the point of view of retributive justice, to ensure investigation and punishment of those responsible for the commission of grave violations of civil and political rights. As a result, the field of TJ has principally concentrated on the development of accountability measures through the application of criminal law.

With expansion of the concept of accountability, the types of goals of TJ, and the mechanisms associated with TJ, different conceptions of justice and other areas of the law have come to play a more important role in transition processes. It is now common to discuss topics associated with debates on corrective justice (reparations doctrine), distributive or social justice (inequality and exclusion) and the justice of recognition (discrimination, differentiated ethnic or group rights) when determining how to address violations of economic and social rights or the economic and social harms derived from violations.

In the same way, a large part of the challenges facing transitional societies are associated with the adjudication of cases and the resolution of disputes that are regulated by branches of law distinct from criminal law. One of these is the restitution of possessions and real estate. Large-scale forced displacement and land dispossession, for example, require the application of property laws, which transitional justice doctrine has virtually ignored.

This presentation will focus on exploring how progress can be made in the identification of economic and social aspects of TJ using different areas of law, especially civil law.

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Clara Sandoval

1. The meaning of the economic and social dimensions of transitional justice

The need to include in the transitional justice field root causes of conflict and repression, and mechanisms that could help to transform them have given place to the “economic dimensions” label. Common root causes in countries undergoing transitions are poverty, inequality, discrimination, land control and exploitation of natural resources. Different mechanisms or tools have been used to address them: the expansion of TJ to violations of economic, social and cultural rights; using reparations to advance development; or development to advance reparations; using reparations to advance economic, social and cultural rights and vice versa; making visible the responsibility of international corporations, banks and international financial institutions; appealing to international cooperation; looking into economic crimes; considering assistance and humanitarian assistance and the like. In this brief document I concentrate in one of those mechanisms: economic, social and cultural rights.

I am unclear as to the meaning of “social dimensions”. I would advocate more for noting the “cultural dimensions” which are often neglected and not fully captured by the economic dimensions terminology even if they are intrinsically linked.

2. Transitional Justice and Economic, Social and Cultural Rights

Transitional justice aims to help states, moving away from repression or conflict situations, to come to terms with the legacy of mass atrocities: gross human rights violations; serious breaches of international humanitarian law and international crimes. While this appears to be a straight forward statement, it remains a highly contested one. So far, transitional justice has dealt with violations and crimes that affect traditional civil and political rights -like the right to life or the right to humane treatment- and has left aside other human rights violations that take place during armed conflict or repressive regimes in a systematic and gross manner like those of economic, social and cultural rights.

An important debate has gained force in recent years questioning whether transitional justice, as a field, should expand and tackle violations of economic, social and cultural rights, and if so how and in which circumstances. This debate is taking place in the midst of important changes in UN policy on transitional justice. Indeed, in March 2010, the UN Secretary-General released his Guidance Note on the United Nations (UN) Approach to Transitional Justice. Principle nine calls the UN “to strive to ensure transitional justice processes and mechanisms take account of the root causes of conflict and repressive rule, and address violations of all rights, including economic, social and cultural rights.”32 The Guidance Note further emphasizes that for peace to prevail, such an approach is needed.33

Equally, the Office of the High Commissioner for Human Rights (OHCHR), the lead entity in the area of transitional justice within the United Nations, has also recognized the need to include violations of all rights and the root causes of conflict and repression in transitional justice processes. In 2006, the UN High Commissioner for Human Rights Louise Arbour made a call in this direction. In her seminal article ‘Economic and Social Justice for Societies in Transition’34 she considered that “transitional justice must have the ambition to assist the 32 United Nations Secretary-General, Guidance Note of the Secretary-General, United Nations Approach to Transitional Justice, March 2010, p. 7.33 Ibid.34 Arbour, L., “Economic and Social Justice for Societies in Transition” in 40 International Journal of Law and Politics 2007(1-27).

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transformation of oppressed societies into free ones by addressing the injustices of the past through measures that will procure an equitable future. It must reach to-but also beyond-the crimes and abuses committed during the conflict that led to the transition, and it must address the human rights violations that pre-dated the conflict and caused or contributed to it.”35 Other OHCHR documents support this call.36

Root causes of conflict or repression and violations of economic, social and cultural rights (ESCR) are different but related concepts. Addressing root causes means understanding the issues and situations that led to conflict or repression. Some of these root causes have an economic dimension but not all of them. Also, some of them are clearly linked to the lack of respect, protection and/or fulfillment of some economic, social and cultural rights because the state in question is responsible, by action or omission, for their violations. This is often related to situations of poverty and discrimination. Further, conflict and repression tend to deepen poverty conditions, in particular of those most vulnerable, and to cause serious violations of their rights.

Besides UN policy changes in the last decade, different states undergoing transitions have already included violations of economic, social and cultural rights such as Timor Leste, Guatemala, Sierra Leone, Liberia and Colombia just to name a few.

Despite these important changes in the day-to-day life of transitional justice, important questions still persist since tension is still present when economic, social and cultural rights violations are included in the transitional justice equation. Resistance comes from practitioners who think that transitional justice mechanisms are not functionally adequate to deal with these violations. They also consider that there are weak political institutions unable to deal with these violations in an adequate manner. Resistance also comes from international lawyers and academics who see the field of transitional justice as disappearing if it is enlarged to other human rights violations.

Still, it is clear that the pressure to include ESCR on the transitional justice agenda will not go away, at least not while civil society organizations and victims gain more voice and are consulted and expected to participate in a meaningful way in such processes. So, relevant questions to consider are: (a) How best to address the connection between transitional justice and ESCR?; (b) What principles should guide their inclusion in transitional justice processes?; and (c) what obstacles should be overcome for a successful and adequate inclusion of these dimensions?

35 Ibid, p. 3. 36 Office of the High Commissioner for Human Rights, Annual Report of the Office of the High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary General, Analytical Study on Human Rights and Transitional Justice, A/HRC/12/18, 6 August 2009, paras. 3 and 59-65.

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Evelyne SchmidThe overlap between violations of economic, social and cultural rights and international crimes

Introduction: Are We Asking the Right Questions?

We are asked to comment on the potential benefits and drawbacks of ‘broadening transitional justice mechanisms’ to include socio-economic issues. Underlying this question and the vast majority of the literature dealing with socio-economic issues and transitional justice is a belief that transitional justice might need to be expanded in order to address abuses in the realm of people’s social or economic well-being. The project proposal refers to ‘a novel area’ and there seems to be a widespread expectation that dealing with economic or social issues in processes aimed at addressing a legacy of past abuses is a departure from the original conceptions of transitional justice.37

Yet, the debate about such a potential expansion is at least somewhat ambiguous: Do we mean an expansion at the conceptual level or at the level of implementation? Surely, at the level of implementation, analyzing human rights abuses other than those commonly understood as civil and political rights violations means potentially more work for transitional justice mechanisms. However, if we believe that transitional justice is a suitable tool to address past abuses of human rights, and if we accept the indivisibility and interrelatedness of all human rights, taking into account violations of economic, social and cultural rights (ESCR) may not necessarily be an expansion of transitional justice. Rather, it is acknowledging that human rights violations embrace ESCR. Put differently, scholars and practitioners may not have to expand the ‘conceptual menu’ of transitional justice. Could it be that we have so far simply neglected a significant part of the main course?I decided to test one aspect of this broader hypothesis in my doctoral research project. In the project I make the case for an area in which we can deal with economic and social dimensions without conceptually broadening transitional justice: Based on a systematic analysis of existing definitions of international and transnational crimes, I demonstrate that the same factual situation can sometimes simultaneously be described as a violation of ESCR and as an international or transnational crime as defined in existing international law. The potential for development in this area has been recognized in recent literature, most notably by Louise Arbour38 and the Secretary-General of the United Nations.39

I am currently revising the manuscript for publication as a monograph. In the meantime, below is a brief summary of a few of the main findings.

37 See for instance, Rama Mani, "Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice and Development," International Journal of Transitional Justice 2, no. 3 (2008) 253: 264, referring to an expansion that ‘has stepped out of [the] original focus [of transitional justice] on ... gross human rights abuses.38 Louise Arbour, "Economic and Social Justice for Societies in Transition," New York University Journal of International Law and Politics 40, no. 1 (2007) 1-28: 15-16, ‘There are still other examples [of prosecutions by domestic, hybrid, and international tribunals dealing with ESCR], and the use of statutes of existing international and national courts to adjudicate economic, social, and cultural violations as international crimes should thus be further explored’. 39 The SG emphasised that ‘[i]nvestigating and prosecuting crimes under national or international law where the conduct involves violations of economic, social and cultural rights as well as civil and political rights’ was part of the UN approach to transitional justice: See Guidance Note of the Secretary-General on the United Nations Approach to Transitional Justice, March 2010, 10.

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A Few Findings

All four groups of war crimes – war crimes against persons, against property, war crimes consisting in the use of prohibited methods of war and war crimes consisting in the use of prohibited weapons – can overlap with violations of ESCR.40

I found a surprising number of WWII (and other) cases addressing criminal conduct that human rights lawyers could today qualify as violations of socio-economic human rights.41

At least eight of the crimes against humanity included in the Rome Statute can overlap with ESCR violations.42

Overlap between ESCR violations and genocide also exists,43 and the same is possible for many other international and transnational crimes not included in the Rome Statute of the ICC.44

The area of overlap between the definitions of international crimes and violations of ESCR may thus currently be underestimated by prosecutors, truth commissioners and scholars alike. Narrow and, of course, not without limitations, the main findings of the study hold promise for the following reasons.

The Potentials of Exploring how International and Transnational Criminal Law Can Overlap with ESCR Abuses

Qualifying facts as international or transnational crimes carries a range of legal and political consequences.To mention just a few legal corollaries of the main finding:

Jurisdiction: international as well as domestic tribunals (civil and criminal) may be competent.

State obligations: States have obligations to cooperate in the prevention, repression and reparation of many of the crimes analysed in the study.

Truth commissions, commissions of inquiry, reparations mechanisms, national human rights institutions or vetting processes whose mandates cover crimes such as crimes against humanity or war crimes can engage with ESCR abuses.

More broadly, taking ESCR seriously in the context of international and transnational crimes is crucially important for discursive reasons. Not only is the relative neglect of ESCR considerations in the context of international and transnational criminal law an arbitrary distinction, but such a neglect also risks to relegate ESCR abuses to the background

40 Some of the preliminary findings are published in Evelyne Schmid, "War Crimes Related to Violations of Economic, Social and Cultural Rights," Heidelberg Journal of International Law 71, no. 3 (2011) 523-41. 41 Notable early cases include the trials against Albert Greiser, Hans Frank, Albin Rauter, Hermann Göring, Friedrich Flick, Ulrich Greifelt, Karl Brandt, Junsaburo Toshino, etc.42 To mention just one example, the ICTY found that the restrictive measures taken by Serb forces against Muslims and Croats, which included cutting off water or electricity, or preventing them to work in their jobs, were aimed at, and succeeded in, making it practically impossible for most Muslims and Croats to remain in municipalities controlled by Serb forces, and therefore amounted to the crime of forcible transfer. Prosecutor v Krajišnik (Trial Judgment) ICTY-00-39-T (27 September 2006), para 729.43 For a brief summary of my findings on the crime of genocide, see Evelyne Schmid, "Genocide & Socio-Economic Rights: A Response." http://www.intlawgrrls.com/2012/03/genocide-socio-economic-rights-response.html (last accessed 2 August 2012).44 Crimes such as certain criminalised slavery-related practices, transnational organised crime, unlawful movements of hazardous waste, aggression, torture or unlawful acts against elements of the environment.

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conveying the impression that they merely provide the context to a small set of civil and political rights abuses.If there is no legal justification for a priori exclusion of considerations related to ESCR in international criminal law, it seems justified to question more openly what type of conduct is selected for prosecution or analysis by a truth commission. The reluctance to address the thorny questions of selectivity more openly would risk cementing views that ESCR violations can never be dealt with in legal processes. Conversely, paying more attention to ESCR violations in the context of international and transnational criminal law recognizes that abuses pertaining to people’s access to food, shelter or health-care often result from adverse human agency, rather than from exogenous environmental circumstances.

Concerns and Limitations

In the study, I discuss four argued concerns that can potentially be raised in relation to the finding that existing definitions of international and transnational crimes overlap with violations of ESCR:

1. Is the legal nature of ESCR suitable to be considered in any study on substantive criminal law?

2. Does the argument of the study only apply to a very narrow set of ESCR violations?

3. Will the argument of the study ‘open the floodgates’ and hopelessly overburden mechanisms?

4. Should we be worried that the credibility of institutions dealing with international crimes might decrease?

It must also be noted that the reach of the findings is limited by the fact that many arguably deserving claims related to ESCR violations do not constitute international or transnational crimes. To meet the definitions of existing international crimes, demanding contextual elements must be proved and there is a risk of overemphasizing the use of international and transnational criminal law to remedy violations of ESCR. As Theodor Meron has succinctly expressed it, ‘[i]nternational criminal law, of course, is just one element in the life of the society. Addressed in isolation, it will not eliminate abuses’.45

45 Theodor Meron, "International Criminalization of Internal Atrocities," American Journal of International Law 89 (1995) 554-77: 556.

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Sylvia Servaes A development and peace building practitioners’ network point of view: FriEnt’s Tour d’horizon of the inclusion of Economic and Social dimensions into Transitional JusticeComing from development and peace building work we at the Working Group on Development and Peace (FriEnt) have long been arguing for an inclusion of social and economic issues into transitional justice. By retracing our voyage of doing this I would like to present you some of the issues for discussion as to what there might be in it in terms of further research questions. The basis is a series of conferences and workshops that we organized over the past five, six years and that brought together colleagues from our member organizations and from our respective partner organizations as well as from specialized organizations with practical experience in different countries and regions. We thus assembled and encouraged exchange on experiences and lessons learned, but also on challenges and new ways.

From Nuremberg …

Our first such public appearance was at the international conference “Building a Future on Peace and Justice” that the German government organized in Nuremberg in 2007. We co-organized a workshop “Looking Back and Moving Forward – The nexus between justice and development” where linking legal and socio-economic dimensions of peace and justice figured as one of the central issues of our panel and the ensuing discussions. This allowed us to bring into relief three different dimensions of justice:

Rectificatory justice: Rectifying the injustices that are direct consequences of the war (i.e. past human rights abuses, war crimes);

Legal justice: (Re-)establishing the rule of law and providing access to justice for previously marginalized groups.

Redistributive justice: Addressing socio-economic injustice, stemming from structural injustices and distributional inequalities that are often causes of conflict.

This distinction goes back to Rama Mani and was presented by her in the workshop panel discussion. In order to facilitate “looking back and moving forward”, all three dimensions of justice have to be addressed, participants held. “Even perfect judicial processes will not prevent violence from flaring up again if basic social, economic and political injustices are not addressed”, summarized Rama Mani. A concentration on human rights issues to the detriment of the social and economic dimensions might preserve the status quo, entrench major social inequalities, and even contribute to deepening social injustices rather than bringing about necessary change.

Here we were one with John F. E. Ohiorhenuan, then Senior Deputy Director, Bureau for Crisis Prevention and Recovery, UNDP, who declared at the opening panel of the Nuremberg conference, “Post-conflict economic recovery poses distinctive developmental challenges. Civil wars are often the product of developmental pathologies like weak economic governance, inequality, exclusion and unemployment. Sustainable peace and recovery require that these structural deficiencies are addressed.”

That is, a consideration of socio-economic dimensions does not only allow to work from a more holistic justice concept, but also to take into consideration the causes rather than just the symptoms of violent conflict -and thus to build a more solid basis for conflict transformation.

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However, in reality, very often the design of transitional justice mechanisms starts from a civil and political rights understanding, ignoring the social and economic dimensions of violent conflicts. The South African Truth and Reconciliation Commission was given as an example in our discussions as falling short of addressing the social and economic injustices of the apartheid system. The commission did not reveal underlying patterns that would have to be changed in order to bring about sustainable peace and justice.

On the other hand, it was argued, that the legal sphere itself provides starting points for a more holistic approach, e.g. in the form of the International Covenant on Economic, Social, and Cultural Rights. This would allow for legally pursuing not only violations of civil and political but also of social and economic rights.

Also, in practice a consideration for the social and economic dimensions presupposes an open eye for local and international actors: Very often, even new actors on the political scene may be part of the old elite and may not be interested in initiating essential economic, political and social changes. Or, the international community often sidelines important civil society groups for fear of becoming engaged with groups that might be considered too political, such as victims’ and ex-combatants’ associations.

Again, an inclusive understanding of justice and peace – it was argued by several participants in the Nuremberg workshop – also has to look at the international responsibility for social, economic and political injustices. Examples of responsibilities for economic injustices on a global level were mentioned and it was suggested to explore to what extent they should be included in demands for the establishment of truth and reconciliation processes in particular countries and regions.

Another observation relevant to our discussion here that came out of a study commissioned by FriEnt and was presented at the Nuremberg Workshop was that there is a growing trend within the international donor community to prioritize “technically” oriented security approaches such as Security Sector Reform (SSR) or Disarmament, Demobilization and Reintegration (DDR). By comparison, there is much less support for reparations – and FriEnt has taken up this point in discussion with UNWOMEN and UNDP at a workshop earlier this year. This means that the international community spends more thought and money on those responsible for atrocities than on those who survived them. A similar concentration may be observed with the focus on legal or truth finding mechanisms that prioritize civil and political rights over mechanisms geared towards social and economic change.

The declaration that came out of the Nuremberg conference called on development actors to “be sensitive to dealing with the past when designing post-conflict development strategies and take into account the relevant recommendations of accountability mechanisms”. At the same time, it required transitional justice strategies to give early consideration to the socio-economic dimension of justice.

… to Berlin

The international conference “New Horizons. Linking Development Cooperation and Transitional Justice for Sustainable Peace” that FriEnt organized in early 2010 took up these points and aimed at examining in more detail in which way development cooperation and transitional justice can take into consideration the full range of injustices that are at the root of war and violence. Here we put social and economic issues squarely at the center of concern with an understanding of “past atrocities” to include social, economic, and cultural injustices.

However, the task is not one of simple inclusion, Nahla Valji from CSVR/ UNWOMEN insisted on in her statement in the opening panel to the conference: “It is not enough to broaden transitional justice and simply include economic, social and cultural rights. Rather,

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the focus should move beyond a narrow legal individual rights paradigm to define the justice we seek in transition as one of social justice.” Her example to underscore her argument comes – again – from South Africa: South Africa, Valji continued, was not about a handful of political and civil rights violations. “It was fundamentally about the wholesale marginalization, underdevelopment and social and economic oppression of a population.” And so “the limited focus of the Truth and Reconciliation Commission (TRC) which spoke only to the violent individual excesses of the apartheid system did not speak to the vast majority of victims – that is, victims of a system that was itself a crime against humanity”.

So, Valji concluded: “If we do not expand the definition of transitional justice and allow it to be context-driven we simply risk being irrelevant. - Apartheid was structural injustice. The redress required therefore equally needed to be structural”.

Interestingly enough, she pointed out, there have been other sites of redress in South Africa apart from the TRC, such as the constitution, new political institutions and redistributive justice policies like land restitution. However, these have resulted in restitution and reform within the broader framework of a neo-liberal economic agenda that has in fact entrenched pre-1994 property rights and a focus on commercial farming at the expense of smaller landowners, she argued. So the limited definitional mandate of the TRC contributed to ongoing fractures and injustices that continue to plague the country.

The Berlin conference then explored social and economic dimensions “field by field” in their interplay between transitional justice and development: Under the title of “Linking Development Cooperation and Transitional Justice Interventions: Experiences and Perspectives” we had a series of five workshops considering:

land issues as a matter of deeper-rooted justice in post-conflict societies where we dealt with experiences from Kenya and Cambodia;

conflict resources and economic crimes, where we explored questions of asset recovery and possibilities for reparation payments and, with examples from Liberia, looked at natural resources as a “natural connecting point” for post-conflict development and transitional justice with truth commissions probably winning over tribunals as the transitional justice mechanism to turn “conflict resources” into “peace resources” being able to focus both on individual responsibility as well as on institutional or structural injustices at the root of abuses or violence;

education and remembrance as a basis for laying the ground for new generations with examples from Northern Ireland, Guatemala and the Western Balkans which each looked at a different range of experiences and the status of the education sector in dealing with past atrocities and injustices.

healing and health needs of survivors as challenges for health systems and communities starting from experiences in South Africa that clearly showed a connection between discriminatory health politics under the apartheid regime and people’s health conditions in Post –Apartheid South Africa and going over to Kenya where the Waki commission dealing with the aftermath of post-election violence in 2008 came across, fairly inadvertently, health issues while they were prepared to deal with issues of security and mobility only;

the economic dimension of justice: considering sustainable and inclusive private sector development as central where socio-economic marginalization and economic deprivation belong to the root causes of a conflict and which was discussed by use of the example of Nepal.

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In the closing panel the question of including social and economic issues into transitional justice processes brought up three central questions:

Does the inclusion of social, economic, and cultural injustice into transitional justice interventions mean overloading mechanisms or does work in transitional justice risk to become irrelevant if it does not include these areas?

Do certain transitional justice mechanisms lend themselves more to dealing with past social, economic and cultural injustices than others? (e.g. truth commissions rather than tribunals?)

Do alternative mechanisms of providing redress, such as, in the case of South Africa, a new constitution or land restitution polices suffice to deal with past injustices or do they lessen possibilities to move forward, as the South African example seems to suggest?

Also it seemed important to include into transitional justice interventions two elements that have been applied in development cooperation and peace building for some time: (1) empowerment of those who did not have opportunities to participate in the political, social, economic, and cultural affairs of their state and society and (2) the inclusion of a broad range of stakeholders into transitional and development processes.

Of cause, all along there were also strong voices of caution, not the least Juan Mendez whose keynote to our Berlin conference evening event is mentioned in the invitation to this seminar. In this key note speech he seems to relegate social and economic matters to development work, legal matters to transitional justice proper, although he also concedes that other mechanisms than tribunals might be helpful in coming to terms with the complexity of mass atrocities. Or Pablo de Greiff who urged, again in the opening panel to the Berlin conference – and with good reason, not to overload transitional justice mechanisms with the examination of social, economic, and cultural injustices of the past - tasks they were originally not made for!

However, we have to ask to what extent this view is in itself is connected to a particular setting/ context and to what extent it holds in the very different contexts that we deal with now: from dictatorship with fairly clearly identifiable perpetrators and a “limited” number of acts of murder, torture etc to mass violence with much more wide spread and “divided” responsibilities, with blurred lines between victims and perpetrators; from a context with an elite fairly rooted in the “western” traditions of Christianity and human rights and a lively civil society to a context that is much more varied in terms of value background and understanding of a “civil society”; from a context with usually functioning even though at that moment dysfunctional institutions to contexts where political and judicial institutions had not been very thoroughly established beforehand; from a context with, yes, a large part of a poor population to a context of, however, much more generalized poverty. In this context Nahla Valji’s remark about becoming “context driven” cited above certainly becomes very vital and basic.

Each of these workshops provides ground and material for further exploration.

Zooming in: health issues as issues for transitional justice

Within the FriEnt context we have, for now, taken up issues around “health and Transitional Justice”. We have done so with a further FriEnt workshop in May 2011 as well as by participating in a GIZ workshop in Rwanda in November 2011 and a workshop organized by medicus mundi international (mmi) in October 2012. Issues included an exploration to what extent different transitional justice mechanisms may take up aspects of health care, the

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starting point being that war and violence do not “only” create their own health challenges, but also include challenges of access to health care at their root.

First and foremost: health issues like gender based violence are acknowledged as a “violation of human rights” and can thus be prosecuted before tribunals. And: access to health is laid down as a human right and can be legally claimed in trials and before tribunals. However, tribunals may not in fact be the best place for negotiating sometimes quite sensitive health issues like, again, gender based violence as the stigmatizing effect of hearings will in some contexts be bigger than what people and especially women hope to get out of it46. Victims’ vulnerability, and more particularly, women’s victims’ vulnerability has only been relatively recently taken into account by provisions made for trauma counseling, protection of identity or special trainings for interrogators in order to avoid retraumatization when examining women on cases of gender based violence. Truth Commissions may provide survivors with a more important forum to share their experience of suffering and survival – a process that may in itself have a healing effect. The Timor Leste Commission for Reception, Truth and Reconciliation provides an example where gender is laid down as one of five guiding principles. Exploration of gendered experience of violence like gender based violence, stigmatization, the special experience of widows as household heads as well as in particular, women’s participation in the transitional justice processes and in pressing for women’s rights are at its core47. However, as the example of the South African Commission has shown, hearings before such commissions may also lead to flashbacks and follow up problems within communities. So cases of particular sensitivity like gender based violence – which does not only apply to women! - need special protection also in this forum. Reparations are seen by some as the “most female oriented transitional justice mechanism”48

(in contradistinction to DDR programs that are seen as predominantly male oriented) as more women, as survivors, have to claim reparations in order to secure survival for themselves and the children at their charge. Providing health care, including trauma healing may be an important part of reparations. At the same time this may provide an important means for empowerment as the example of the Peruvian Truth Commission shows. The Commission brought out the horrendous psycho-social consequences of the twenty year war in Peru. It recommended reparations that also included a mental health component that was formulated in terms of a „Right to Reparation“. The ensuing “Reparations Plan” became a central advocacy instrument for survivors to vindicate basic services in the health sector. The process was considered to be an important exercise to claim social, economic and cultural rights that had been denied even before the war. However, it also became clear that all relevant actors have to become active including the state in whose responsibility the provision of adequate health services and reparations lie. Otherwise empowerment would lead to frustration of those empowered49.Last but not least there is vetting and lustration that may be important to consider when setting up transitional justice mechanisms in the aftermath of dictatorship and mass atrocities and at the same time desiring to (re-) build a health system: Medical personal responsible for death and violence has to be screened out of the institution notwithstanding legal prosecution for crimes against humanity. A notorious example is the Nuremberg Medical Doctors’ Trials

46? A colleague reported from the DRC context that „women who were raped would certainly like to see the perpetrators brought to justice. But for the Congolese women, the reality is different [..] The criminal prosecution of the perpetrators [can easily] become a punishment for the suffering women themselves – for in situations in which rape becomes public knowledge and results in social ostracism, women will do their utmost, out of desperation, to keep their experience secret […] even if their tormentor goes unpunished as a result. [taz, 03.09.2005, printed version; author’s translation]. 47 Cf Wandita et al. in Rubio Marín (ed) 2006.48 Cf UNWOMEN Kampala Report 201049 Cf Lisa Laplante 2011.

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that brought medical doctors to the books who participated in euthanasia programs of the Nazi Regime.The health sector may be an important entry point for people to find their way back into society and vindicate their rights (to basic services like education and health care) and should thus be linked to transitional justice mechanisms. It is also an important entry point for gender to be more systematically taken into account while at the same time it risks getting stuck in a simple “men/ women” divide.

Summary: The workshop questions

So from this tours d’horizon of practice, where are we in terms of the questions put to us for the workshop?

1. Issues: Maybe it is less a question of issues – a wide range of social, economic and cultural may be “an issue”. Details would depend on careful context analysis. Much more important seem to us questions of (national and international) actors, approaches, mandates (!) and last but not least - political will to put social and economic dimensions on the agenda and into the mandate of transitional justice mechanisms.

2. Benefits: A broader understanding of justice seems vital if transitional justice is to contribute – as it claims - to conflict transformation. It is only by including the social and economic dimensions into transitional justice that we get at causes of conflict - without which we do not have a safe basis for conflict transformation!

Potential drawbacks: Considering social and economic dimensions may take even more coordination, cooperation and political will that already represent a challenge for the more accepted issues of political and civil issues. But in view of the above outline this cannot be a reason not to consider social, economic and cultural issues! Rather we have to see how to deal with these challenges.

3. How to achieve inclusion: The human rights based approach may be one entry point as it is based on internationally agreed rules and values and human rights do provide for considering social, economic, cultural issues. A needs based approach may be another option as it brings out the importance of social, economic and cultural issues and the necessity to work squarely on the interface of peace building, development and transitional justice (cf. the work by Michelle Parlevliet).

4. Distinction of transitional justice from general problems surrounding violation of social, economic rights: This is indeed a central question for practitioners - certainly when it comes to reparations which should not be “paid” by development programs. Depending on the situation it may be vital for further processes of development and conflict transformation not to blur the lines between victims of atrocities and victims of general violation of social and economic rights. A clear analysis, a clear mandate and criteria for each are key here; also that development work and transitional justice work hand in hand.

5. Research needed: From a peace building and development practitioner’s point of view the issues in points 1, 2 and 4 seem vital in order to better understand and more easily find entry points for action.

6. Other: One important point that has been conspicuously absent from all these discussions – and here Valji is one of the few to insist on – is the consideration of gender inequality: As Valji again put it in the Berlin opening panel, this most pervasive and universal inequality which gender inequality represents is exacerbated by conflict and its impact on the ground of post-conflict societies. Yet beyond a focus on women as victims of sexual violence gender, gender power relations in particular

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and the need for gender equality and justice have largely been ignored by transitional justice mechanisms to date. Much more needs to be done here.

References

• FriEnt: Development and Legitimacy in Transitional Justice – Workshop Reports, 2007, Susanne Reiff, Sylvia Servaes, Natascha Zupan. http://www.frient.de/publikationen-service/dokumente/library/development-and-legitimacy-in-transitional-justice.html

• FriEnt: New Horizons - Conference Report, 2010, Sylvia Servaes & Natascha Zupan. http://www.frient.de/publikationen-service/dokumente/library/new-horizons-linking-development-cooperation-and-transitional-justice-for-sustainable-peace.html

• FriEnt: Health System in (Post-) Conflict Situations. Workshop Report, May 2011, Sylvia Servaes http://www.frient.de/publikationen-service/news-details/article/gesundheitssysteme-in-post-konfliktsituationen.html?tx_ttnews%5BbackPid%5D=52&cHash=967985c5e3c3f22debd96ce031676875

• FriEnt: Gender, Reparations and Development. Workshop Report, January 2012, Natascha Zupan http://www.frient.de/publikationen-service/news-details/article/gender-reparationen-und-entwicklung.html?tx_ttnews%5BbackPid%5D=52&cHash=68da2aa6a222011bc035a6a8fe8e629d

• Reparations, Gender, and Development. Report of the Kampala Workshop, Dec 2010, UNWOMEN & UNDEP. http://www.unrol.org/article.aspx?article_id=164

• Lisa J. Laplante: Linking Peace Building and Health in Post Conflict Settings. FriEnt Essay Series 2011 http://www.frient.de/publikationen-service/dokumente/library/linking-peacebuilding-and-health-in-post-conflict-settings.html

• Learning to Engender Reparations in Timor-L’este: Reaching out to Female Victims. Galuh Wandita, Karen Campbell-Nelson; Manuela Leong Pereira. ICTJ 2006. Ch 6 in Ruth Rubio-Marín (ed): What happened to the women? Gender and Reparations for Human Rights Violations, http://www.ssrc.org/workspace/images/crm/new_publication_3/%7Bd6d99c02-ea4a-de11-afac-001cc477ec70%7D.pdf

• Parlevliet, Michelle: "Rethinking Conflict Transformation from a Human Rights Perspective," and "Holding Concurrent Realities. Reflection on the Responses," in: V. Dudouet and B. Schmelzle (eds.), Human Rights and Conflict Transformation. The Challenges of Just Peace, Berghof Handbook Dialogue Series No. 9, Berghof Conflict Research (Berlin), 2010, pp. 15-46 and 105-113. http://www.berghof-handbook.net/

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Oct 22, 2012

Yasmin SookaI first encountered the term "transitional justice" when, as a Human Rights Lawyer working in South Africa, I woke up to the news that our leaders sitting at the negotiations had agreed to a number of compromises which would haunt South Africa later. One of them related to an amnesty deal for perpetrators of human rights violations. Victims who had suffered under the

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oppression of apartheid which had been declared a crime against humanity would not be able to demand that the state fulfill its obligations to punish those responsible and bring them to justice as is required under international law. The amnesty deal also led to the establishment of the Truth and Reconciliation Commission. Its mandate which prioritized civil and political violations and largely ignored the structural nature and violence of the political economy of apartheid which was the bedrock upon which the edifice of apartheid existed. This issue itself became a battle ground within the Commission and bearing in mind that the Commission was a microcosm of what was going on in the rest of the country, we battled over whether the Commission should rather focus on these crimes – impact of the policies of apartheid-the dispossession of land, the inhumane practices of land removals, pass laws, dispossession of land, impact of poor education, as well as the civil and political crimes. Those of us in the commission who argued that this should be our focus lost and while the Commission did an incredible job of dealing with the mandate given the constraints, in reality it lost an important opportunity to make the link between the injustices rendered by the economy of apartheid; socio-economic rights violations and the link between benefit and development which continues to provide the basis for poverty and inequality in our country. Today as our government grapples with to understand why our economic growth trajectory has largely assisted those that already have wealth- the white minority while in the main South Africa's black population continues to live in poverty. Paradoxically at this point, South Africa was one of the first countries in the world to pass the most progressive constitution with a Bill of Rights which makes socio-economic rights justiciable.

A possible explanation for this is that South Africa modeled itself on the Latin American experiences where the prevailing assumption was that transitional justice mechanisms such as truth commissions, human rights trials and reparations programs are meant to engage mainly, if not exclusively, with civil and political rights violations that involve either physical integrity or personal freedom, and not with violations of economic and social rights, including such crimes as large-scale corruption and despoliation.

For a number of us in this field - transitional justice advocates, particularly those who work in or come from impoverished post conflict or post dictatorship countries - this traditional view is inadequate. It ignores the experience of developing countries abused by dictators or warlords who have been both brutal and corrupt. It perpetuates an impunity gap by focusing on a narrow range of human rights violations while leaving accountability for economic crimes to ineffective domestic institutions or to a still evolving international legal system that deals with corruption. Egyptian human rights activists and our compatriots in the Middle East are confronted with questions.

The work of El Hadji Guissé

As far back as 1997, a member of the Joinet team, El Hadji Guissé was asked to look at what I call the fifth pillar - socio-economic and cultural rights violations, insofar as it affected impunity.

On 26 August 1993, in its resolution 1993/37, the Sub-Commission on Minorities welcomed the preliminary report (E/CN.4/Sub.2/1993/6) prepared jointly by Mr. Guissé and Mr. Joinet and requested them to submit a report, including conclusions and recommendations on the first aspect of the question of impunity, relating to civil and political rights, at its forty-sixth session (1994), and to continue their study on the second aspect of the question, concerning economic, social and cultural rights. A short preliminary report (E/CN.4/Sub.2/1994/11) on impunity and economic, social and cultural rights was therefore submitted at the forty-sixth session. At that session the Sub-Commission decided, by its resolution 1994/34, to entrust Mr. Joinet with the completion of the first aspect, concerning civil and political rights and Mr. Guissé with the second aspect, concerning economic, social and cultural rights, and requested

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the Special Rapporteurs to submit their respective reports to the Sub-Commission at its forty-seventh session.

The working paper (E/CN.4/Sub.2/1992/18) was submitted to the Sub-Commission at its forty-fourth session. It includes a preliminary analysis of the legal mechanisms and the practices that facilitate impunity and proposes guidelines for the consideration of anti-impunity measures. In its resolution 1992/23, of 27 August 1992, the Sub-Commission took note of the working paper prepared by Mr. Guissé and Mr. Joinet and decided to request them to draft a study on the impunity of perpetrators of violations of human rights in order to propose measures to combat that practice. The Commission on Human Rights, in its resolution 1993/43, of 5 March 1993, endorsed the Sub-commission's decision and the Economic and Social Council, by its decision 1993/266, approved the Commission's action. In paragraph 5 of its resolution 1992/23, the Sub-commission decided to consider the report at its forty-fifth session, in 1993.

In 1995, at the forty-seventh session (1995), a first interim report on the impunity of perpetrators of human rights violations (economic, social and cultural rights) (E/CN.4/Sub.2/1995/19) was submitted by Mr. Guissé. There was a second interim report (E/CN.4/Sub.2/1996/15) submitted in 1996 and a final report in 1997. In its resolution 1996/24, the Sub-Commission requested the Special Rapporteur to submit his final report at its forty-ninth session (1997).

While Louis Joinet's work formed the principal basis for the impunity principles which is the norm today, the international community was not ready to deal with Guisse's work. Guissé made the point that violations of economic, social and cultural rights may be related to historical events that have been consigned to the past are or of current significance and may continue to have serious and very negative effects on the enjoyment of economic, social and cultural rights of individuals and peoples. The serious violations of these rights have remained unpunished and there has been no reparation. The best known examples are slavery, colonization, apartheid and the looting of the cultural heritage of the third world. He also made explicit the question of contemporary violations of economic, social and cultural rights which are national or international in character and raised that the following examples of international practices that give rise to serious violations of economic, social and cultural rights: debt, structural adjustment programs, deterioration of terms of trade, corruption, laundering of drug money, fraudulent activities of transnational corporations, etc. Violations committed on national territory, most of which are considered to be justiciable offences, include: misappropriation of public funds, misuse of company assets, corruption, tax and customs evasion, financial speculation, fraudulent or unlawful enrichment, exploitation of illegal labor and migrant workers. As we debate these questions, I am sure that our Egyptian colleagues as they wait for their transition to unfold ponder questions of accountability -the complicity of third parties with their former leaders and government.

As far back as 1997 Guisse raised the issue of Violations and the right to development. The right to development grew out of the economic inequality and the disadvantaged position of the underdeveloped countries. The right to development establishes the principle of reparation to which the peoples and countries which had long been robbed of their wealth by slavery and colonization are entitled. The enormous inequalities between poor countries and developed countries are the result of centuries of pillaging and exploitation during which civilizations were destroyed, social structures and means of production wiped out and the ecosystem devastated in Africa, Asia and Latin America. Unequal distribution of wealth and income at both the national and international levels has worsened in recent decades and has reached such dimensions as to be a genuine international scandal.

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Guissé also made the point that the Global Consultation on the Realization of the Right to Development as a Human Right, held at Geneva from 8 to 12 January 1990, essentially concluded that the traditional development strategy was transnational in scope and mainly consisted of creating modern industrial enclaves and zones of exclusion in the developing countries. Those enclaves and zones usually have nothing but negative effects on developing countries' economies and serve ultimately as bases for transnational corporations to spread their activities among various countries in order to avoid having to comply with domestic laws and international standards. Such establishments have usually proved to be unstable because the parent company can decide, for commercial, economic or political reasons, to move its subsidiaries to other countries. The purpose of such practices is to evade the economic laws of the countries concerned and they alone constitute violations of the right to development of the populations of one or more countries.

Traditional development strategies have also resulted in the creation of privileged national elites which follow the same patterns of consumption as high-income groups in developed countries, while the great masses of the population are unable to meet their most basic needs. The leaders of developing countries have been designing their national economic policies in this way for almost half a century. I should not fail to mention that this gap in incomes and lifestyles is not limited to the developing countries; it also exists, and is becoming increasingly frequent, in the developed countries. As stated above, the actors and beneficiaries of these strategies constitute a minority, compared with an overwhelming but deprived majority.

Such practices, when combined with the perverse impact of indebtedness and of the deterioration in the terms of trade, together with the baneful activities of the transnational corporations, prevent the developing countries and their peoples from effectively enjoying their right to development.

Guissé’s report also addressed the impact on various rights:

Right to work

Right to health

Right to food

Key Areas for Consideration

In many countries, the underlying causes of conflict are exclusion and marginalization based on race, ethnicity, religion, etc, the lack of access to resources and the inability to realize their rights to development. A critical appraisal of past and present conflicts and crisis situations reaffirms the importance of dealing with all human rights violations in an integrated and interdependent manner. If transitional justice’s broader objectives of social transformation and the prevention of conflict are to be achieved, it is not only important to build dispute resolution institutions and ensure accountability for abuses but also—and perhaps even more importantly—to attack the sources of the legitimate grievances that, if unaddressed, are likely to fuel the next conflagration. Violations of civil and political rights are intrinsically linked to violations of economic, social, and cultural rights, whether they are causes or consequences of the latter. The mandate of truth-seeking bodies provide an important tool at the time of a transition to ensure that these issues are actually dealt with and provide an important resource for new governments to begin tackling issues which are also key drivers of political violence.

Addressing the dichotomies

Privileging Combatants and discriminating against Victims

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Security considerations usually privilege combatants who are perceived as a potential threat to the new fledgling state and so DDR programs in which combatants receive benefits are often the first on the table with donors willing to invest them. This is contrasted with the bitter experiences of many countries including my own where victims are compelled to wait for reparations. Donors are unwilling to invest in reparations based on the notion that the state must pay for this. In many countries emerging from conflict where the new state has to rebuild and the rights of victims compete with the rights of citizens to access development. In this competition, victims are usually the losers.

Reparations and Development

Many states argue that reparations should be substituted by development and many practitioners on the ground in developing countries are confronted with this problem. Of course it is certainly true that as countries emerge from conflict the basic budget is made up of aid coming from many external donors. And so in a county like Sierra Leone, in the creation of programs, it was necessary to avoid creating more problems, rather to use these programs as a basis for the reparations suggestions. Access to health and to social services may not be a substitute for reparations but this is an issue which is deserving of much greater attention. A transitional justice program must at the end of it yield for the victims a holistic sense of justice. This will include the historical truth which all can live with, some possibilities of criminal justice, a well thought out reparations program, institutional reform and the restoration of civic trust including being able to access the economy.

Ensuring that political crime does not morph into ordinary crime

If one considers the example of South Africa it is apparent that while we live free of political violence, political crime has morphed into ordinary criminality. In addition, 18 years down the line many question whether the settlement was unjust because it failed to deal with the questions of political economy which has impacted on South Africa today. The peace process has not yielded dividends for the vast majority of Black South Africans. In my view a proper consideration of the socio-economic questions at the time would probably have led to a different result today.

Corruption

In addition, the Truth and Reconciliation Commission (TRC) did not address corruption because it claimed that corruption fell outside its mandate. Whether or not the exclusion of economic crimes may have had more substantive reasons, its consequences, as articulated in a South African civil society report from 2006, should be a lesson for other countries, especially those seeking to emulate the TRC process. The report demonstrates links between human rights violations and corruption, pointing out that “when the apartheid state was at its most repressive, it was also at its most corrupt”.

The ongoing trials of Peru’s Alberto Fujimori and Liberia’s Charles Taylor also show that prosecution in itself may not decisively break the walls of impunity built in the pre-transition period. Most of these dictators’ ill-gotten assets were hidden while they were in power, so that Fujimori can even claim that since his exile “no foreign bank accounts have been found”.

Compartmentalization of Transitional Justice

My colleague Ruben Carranza terms this the "Compartmentalization of Transitional Justice"

In theory, there seems to be no fundamental obstacle to applying the key elements of transitional justice to large-scale corruption and economic crimes. In practice, however, the predominant approach in the transitional justice field tends to view human rights as narrower than the range of human rights violations that actually occur. The field compartmentalizes the

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unresolved legacies faced by transitioning societies, particularly in developing countries. It constructs one compartment for human rights violations and another for economic crimes and corruption. Economic crimes thus are treated as if they do not constitute rights violations in themselves. Not only does this compartmentalization oversimplify the relationship between those unaddressed legacies but it also fails to reflect the reality of the societies that seek to address them.

Because African practitioners have had to confront these issues, they have gone beyond the usual framework and have begun to include a focus on these kinds of issues fairly explicitly. Liberia, Sierra Leone, Kenya argue ‘structural violence’ has had far wider implications than direct violence, and that it has been and continues to be a fault-line for violent conflict. International, hybrid and regional human rights tribunals, including the ICC, have been set up to try heads of state and other political or military leaders, with many prosecutions founded on the concept of system crimes. The range of crimes that form part of this prosecutorial strategy assumes the exclusion of economic crimes, despite the otherwise strategic role of these crimes in maintaining systems of abuse. The assumption seems to be that someone else will address those ‘other’ systemic violations and that something else can provide redress.

Transnational Actors including the International Financial Institutions

An issue which confronts human rights activists in the Middle East is the role of other actors i.e. international financial institutions (IFIs). IFIs have in the last number of year been influential in shaping its direction of anti-corruption efforts partly driven by criticism of the role they played in lending to corrupt, repressive regimes. However, it is unlikely that IFIs will look at the past and examine their role in sustaining authoritarian regimes. Victim governments also have to search for the assets that were illegally banked in developed countries. Initiatives such as the Swiss model of asset recovery which facilitate these measures should be carefully looked at and made universally applicable.

Transnational Corporations which collude with corrupt leadership also pose a huge problem- particularly in countries where corruption has become endemic. Politicians see the state assets as their private property and have become the new predators or violators looting with impunity with little regard to the needs of the population. In addition, many of those complicit frequently come from the developed world. The international legal system is inadequate to deal with them. Many transnational actors make profits that far exceed the GDP of the country that has been looted and the lethal cocktail of corrupt leadership and these companies are often at the heart of many conflicts.

In Sierra Leone, diamonds fuelled the conflict. Therefore, Charles Taylor quite frankly should not be the only person on trial: who bought the diamonds from him and who supplied him with arms and the markets are questions that must be answered. The DRC is another such example-we know which companies and which countries make it possible for the looting to continue but there has been no action thus far. This gap will need to be addressed in the years to come.

A further example is Timor-Leste: The Truth Commission in Timor-Leste found evidence of direct violations of economic and social rights caused by military operations, security concerns, and the political agenda of the government at the time. The Commission noted, among other violations, the explicit use of education as a propaganda tool, thereby restricting children’s educational development and infringing on their right to education; forced displacement and the resettlement of entire villages in areas that had previously been avoided on the basis of health risks including poor soil and malarial conditions; and the manipulation of coffee prices to fund military operations, thus limiting farmers’ livelihood prospects.

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It is important to note that both civil and political rights and socio-economic rights abuses are committed against overlapping sets of victims by an invariably overlapping set of perpetrators. An impunity gap is created when transitional justice mechanisms deal with only one kind of abuse while ignoring accountability for large-scale corruption and economic crimes. Addressing poverty and social inequality must be included among the strategic goals of any transitional justice undertaking. In addressing the underlying causes of the conflict Truth-seeking measures, criminal prosecution, reparations and institutional reform must begin to deal with these issues systematically. If not, the gains and dividends made from transitional justice initiatives could be unmade if the conditions that led to or aggravated repression and conflict are left to fester, allowing repression to remerge and conflict to recur. Building a just society requires opportunities to realize one's capacities -human security does not come from investing in guns, rather from investing in people.

Participation of citizens in decision making -investing in local actors and strengthening domestic capacity to deal with impunity of any kind is crucial.

Way forward

Address the dichotomy- begin to take up the work of the fifth pillar.

Engage donors in new thinking and new initiatives.

Poverty and inequality produce societies which are diminished in social capital and the capacity to ensure these societies are healthy and just. Unless we understand the links between these various disciplines we forfeit the opportunity to make a difference.

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Lars WaldorfCentre for Applied Human RightsUniversity of York

What are the economic and social issues that are relevant to TJ?

There are perhaps three main ways to approach this question. The first is by addressing the economic and social issues that contributed to state violence or civil conflict in the first place. This raises big questions of causality: the extent to which economic grievances drive conflict is highly debated.

The second is by addressing those violations of economic and social rights that rise to the level of “large-scale past abuses” and so require transitional justice mechanisms. For the most part, transitional justice has focused on gross violations of civil and political rights. This partly reflects a legalistic bias: in Ken Roth’s classic (and contested) formulation, it is easier to identify violations, violators, and remedies when it comes to civil and political rights. That is, those rights are more justiciable, notwithstanding some celebrated cases from the South African and Indian Constitutional Courts.

The third is by looking at how the workings of transitional justice mechanisms affect, and are affected by, economic and social issues. A recent empirical study found that a successor regime’s choice of transitional justice mechanism is positively correlated with the health of the economy.50 Thus, poorer countries were more likely to select cheaper transitional justice mechanisms (amnesties and truth commissions) over more expensive ones (trials).

The focus of debate is usually around the second approach and that is what I will address here.51

How can socio-economic issues specific to TJ be distinguished from general problems surrounding the violation of economic and social rights?

This is a crucial question that I think Louise Arbour elides in her 2006 lecture.52 I would maybe phrase the question slightly differently: How do we distinguish between those violations of economic and social rights requiring transitional justice mechanisms and those requiring ordinary human rights mechanisms (UN treaty bodies, Special Rapporteurs, etc.)? One answer is large-scale past abuses of economic and social rights. Another answer is that only those ESC rights violations that rise to the level of international crimes deserve transitional justice. But I suspect that many would find that latter approach too narrow and too legalistic.

What are the benefits of broadening TJ mechanisms in this way, and what are potential drawbacks?

I think the drawbacks far outweigh the (speculative) benefits. There are enormous practical difficulties with having transitional justice mechanisms tackle large-scale socio-economic abuses of the past. First, those mechanisms are already over-stretched, under-funded, and

50 Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington, DC: United States Institute of Peace Press, 2010).51 For a more detailed version of my argument, see Lars Waldorf, ‘Anticipating the Past: Transitional Justice and Socio-Economic Wrongs,’ Social and Legal Studies 21:2 (June 2012).52 Louise Arbour, ‘Economic and Social Justice for Societies in Transition’, Second Annual Transitional Justice Lecture, New York University Law School, 25 October 2006.

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under-performing. Reparations programs, for example, do not have the funds to cover victims of massive economic and social wrongs and are unlikely to ever acquire such funds. Second, there is a danger of raising already inflated expectations of what transitional justice mechanisms can accomplish. Truth commissions have suffered self-inflicted wounds by over-promising reconciliation. Third, transitional justice mechanisms have a relatively short life-span during periods of political transition. By contrast, the remedying of socio-economic injustices is a long-term political project that requires democratic deliberation – something that is necessarily “post-transitional” in Cath Collins’ sense.53

How can the inclusion of socio-economic factors be achieved?

I do not think that transitional justice should directly tackle large-scale, past socio-economic injustices. I simply don’t see the value-added. What can transitional justice do that is not already being tried by rights-based and conflict-sensitive development, prosecutions for corruption, peace-building, etc.?

That said, transitional justice can take greater heed of such socio-economic wrongs. One option is to loosely link transitional justice and development. Pablo de Greiff argues that transitional justice could benefit development indirectly by promoting inclusive and participatory citizenship, especially for victims and survivors.54 What that would actually look like in terms of “programmatic links” has yet to be seen. There is a real risk, however, that such links may make transitional justice even more state-centric than it is already (especially given the current trend in development toward providing budget or sector support). Another option is to reorient transitional justice so it becomes more responsive to the immediate needs of victims themselves. One innovative proposal is to provide victims with reparations in the form of shares in microfinance institutions (MFIs).55

53 Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (University Park, PA: The Pennsylvania State University Press, 2010).54 Pablo de Greiff, ‘Articulating the Links Between Transitional Justice and Development: Justice and Social Integration’, in P. de Greiff and R. Duthie (eds), Transitional Justice and Development: Making Connections (New York: Social Science Research Council, 2009).55 Hans Dieter Seibel with Andrea Armstrong, ‘Reparations and Microfinance Schemes’ in P. de Greiff (ed), The Handbook of Reparations (Oxford: Oxford University Press, 2010).

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Galuh WanditaNever the Twain? Making transitional justice work for social and economic rights

Key Points

Transitional justice has largely maintained its focus on contexts where mass crimes, or what some call ‘atrocity crimes,’ have taken place. This focus on systematic crimes - crimes against humanity, war crimes, and genocide usually mean that there are thousands of cases of killings, torture, disappearances, rape etc. And in a way, these atrocities require so much attention that we forget to look at the (social and economic) roots of conflict and the socio-economic impact of conflict. After more than a decade working in this field, I think, whether we can successfully contribute to 1) addressing structural inequality and 2) contribute to meeting victims’ urgent socio-economic needs will be the “make or break” test for transitional justice.

One area to begin is to look at whether truth commissions (or other truth-seeking mechanisms) have been given the mandate to look at social economic root causes of a conflict? Did a commission’s findings and recommendations help shed light on socio-economic issues and provide guidance on a way forward? Or where there limitations to the mandate (for e.g. East Timor’s CAVR was specifically barred from looking at land conflict because at the time a land commission was going to be established)? CAVR conducted research and wrote a chapter on social and economic crimes, and also implemented a rehabilitation program for vulnerable victims during the life of the commission. However, more than 7 years since the report was launched, most of the truth commission’s recommendations have yet to be implemented.

Reparations have the potential to transform structural inequalities (borrowing tools from ‘gender and development’ we can speak about practical vs. strategic victims’ interests); but the fact is that reparation programs are few and far between. The needed political momentum to push for the establishment of a national reparations program has proven to be a rarity in Asia. Thus, practitioners on the ground have to be pragmatic and make use of any resources available to address victims’ needs. Thus, I am arguing to mainstream a reparative approach to post-conflict reconstruction and development. Currently, there are examples in Aceh and Nepal (also Peru) where post-conflict reconstruction includes provision of cash to “conflict-affected persons.” Some tweaking to this approach could strengthen a reparative approach to development projects, for example by integrating some kind of documentation/ statement-taking process, and providing forums to acknowledge victims in their communities. In Timor-Leste, a reparations draft bill is still stuck in parliament. The Ministry of Social Solidarity has provided social assistance to a limited number of women victims working with civil society groups, under its program for vulnerable persons. These groups have tried to “make social assistance meaningful” by advocating to the Ministry that victimization can be used as a criteria to prioritize assistance, and by adding trauma healing workshops to economic assistance and livelihood skills training.

Prosecuting dictators for corruption is an important step in the transition towards democracy. However, transitional justice actors usually focus on taking perpetrators of international crimes (war crimes, crimes against humanity and genocide) to trial. Here is a gap that also needs to be addressed in the future. In the business of adjudicating

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these international crimes, victims’ social economic needs are often sidelined. There is some progress in the establishment of trust funds for victims (such as the ICC’s Victim’s Trust Fund, and Sierra Leone’s War Victim’s Trust Fund) but this progress still needs to be replicated in many other contexts. A trust fund for victims under Timor-Leste’s legislation establishing its serious crimes court, for example, was never actually created. In a situation where many victims are extremely poor, the fact that the trust fund was never established is negligent, and attests to their marginalization. More than a decade since the establishment of the serious crimes (hybrid) court, all 84 persons convicted have been pardoned and the serious crimes process all but abandoned. Many victims who participated in the serious crimes process feel that they gained very little from their efforts and struggle to survive.

Institutional reform is a natural nexus between TJ and social economic concerns, but some guidelines may need to be developed to better articulate this. Guaranteeing the non-repetition of violations may include a wide array of fields, including: security sector reform, strengthening capacity for justice (legal aid, judiciary etc.), rule of law, prison reform, education reform, democratic elections, empowering participation of citizens/ victims etc. In Timor-Leste, the UN, international community and national government seem to suffer from amnesia in the gargantuan effort to build (and reform) institutions, despite the fact that the truth commission (CAVR) made findings and recommendations directed to many sectors.

Lastly, I will end with a critique on the traditional “TJ” methodology that relies on centralized, statutory mechanisms for the delivery of justice. In many contexts where impunity is engrained (despite political transitions), we need to improve how we work on the long-term goals of transitional justice. This may include working with “everyday” mechanisms (not extra-ordinary ones), such as commissions working on freedom of information, corruption, and initiatives led by local governments and/or civil society. We need to improve how we ensure participation of victims (not only in terms of rhetoric), including allowing victims to set the agenda and priorities. One way to facilitate this is to ensure the space and resources for strengthening victims’ association, so that they can be more democratic, independent, long-term, and better able to meet the needs of their members.

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Sally-Anne WayThis brief note addresses the following questions: What are the economic and social issues that are relevant to TJ? What are the benefits of broadening TJ mechanisms in this way, and what are potential drawbacks? How can the inclusion of socio-economic factors be achieved? And how can socio-economic issues specific to TJ be distinguished from general problems surrounding the violation of economic and social rights?

1. What are the economic and social issues that are relevant to TJ?

Economic and social issues are highly relevant to TJ through two main avenues.

The first is the direct violation of ESC rights during a period of conflict, violations which are frequently ignored in transitional justice mechanisms. During conflicts, there can be many violations e.g. displacement from land and livelihoods, the bombing of schools and hospitals (particularly those that serve particular minority groups or regions), the destruction of physical infrastructure and objects essential to human survival, including water supplies and housing. In certain conflicts, these kinds of impacts are far more than collateral damage; they are specifically aimed at displacing peoples and destroying their livelihoods and thus are often being used as a weapon of war. Starvation as a method of warfare is expressly prohibited under international law, as it is a common strategy for subjugating populations. Many of these kinds of violations amount to violations of both humanitarian and human rights law, and from an ESCR perspective often constitute violations of the negative obligations implied under ESCR i.e. the duty to refrain from violating these rights.

The second key avenue through which economic and social issues are relevant to TJ is through the root causes of conflict. Extreme economic inequality can produce a very unstable society, especially when people find it difficult to secure a minimum standard of living for themselves and their families to the extent that they are struggling to provide food and shelter for their families or live and work in extremely exploitative conditions. It has been argued, for example by Frances Stewart, that horizontal inequalities (inequalities between social groups) are a far greater predictor of conflict than vertical inequalities (inequalities between rich and poor in one social group).

2. What are the benefits of broadening TJ mechanisms in this way and what are potential drawbacks?

Broadening TJ mechanisms to recognize violations of ESCR of the first kind, and to recognize the underlying causes of the conflict, is clearly essential. Justice cannot only be about accountability for the violence and eradicating impunity, as this would fail to provide justice, restitution and reparation for the first type of ESCR violations. Meanwhile, if the second type of economic and social root causes of the conflict is not addressed, then the conditions for future conflict will remain, even if the conflict appears to have ended.

However, it is clearly difficult to address both sets of issues within conventional TJ mechanisms. The first because it requires restoring the status quo ante in economic terms (e.g. restitution of land, homes, rebuilding of infrastructure etc) which requires a heavy investment of resources, but can also be extremely political and destabilizing if a new status quo has been established. In cases of ethnic cleansing, it can be particularly difficult to persuade people to return to their homes as they may not be safe, and the security arrangements may be inadequate. The second set of underlying economic and social causes is even more difficult to address within the short term context of TJ and it can face political resistance by powerful wealthy elites, even if an initial agreement is reached (e.g. in Guatemala, although many economic and social reforms were included in the Peace Agreement, including e.g. tax reform to ensure that the wealthy would pay

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tax, this has been resisted and has still not be implemented as per the Agreement due to powerful political resistance. In South Africa, although commitments were made to reduce inequality, levels of inequality remain stubbornly high and are the same today as they were in 1994 at the end of apartheid, even if the color dimensions have very slightly shifted, inequality between the haves and the have-notes remains extremely high and the society continues to have a high crime rate.

3. How can the inclusion of socio-economic factors be achieved?

The first step in the inclusion of socio-economic issues within TJ is simply to recognize the importance of these issues - moving beyond the traditional judicial concern with impunity and accountability for killings and CPR violations to recognise other ways in which peoples' lives have been destroyed.

Recognizing the first set of ESCR violations, could help to ensure that some elements of restitution and reparation focus more explicitly on the ESCR dimensions of the preceding conflict and the extent to which people's lives have been impacted, especially through the loss of their lands or displacement from their homes. Restitution need not always involve large amounts of resources, as it rather requires returning to the status quo ante (although it may require very strong political will). Reparations may however be more difficult given the issue of resources, but any calculation of the resource burden should include an analysis of the cost of transitional justice mechanisms in and of themselves, especially international justice, which clearly requires huge amounts of resources often from the international community.

Recognizing the second set of underlying causes is important symbolically, as well as for practical sustainability of any peace agreement. Where economic inequality or extreme deprivation or harsh economic or social discrimination against a particular ethnic or racial group (e.g. as in South Africa with apartheid, or Guatemala with discrimination against indigenous peoples) is one of the underlying causes of the conflict, then resolution of conflict must necessarily recognize the part played by these underlying causes - partly for the catharsis that comes with recognition, and partly for the shift in post-conflict social and economic arrangements and government policies that this should precipitate. Addressing structural inequalities is not easy, because there are no clear individual victims, but rather the whole of society is affected, and resource limitations will be a significant constraint, but the elements of catharsis and setting out standards for future policy directions can have structural impacts without necessarily requiring immediate investment of resources. Commitment to invest resources over time for structural change, and to progressively realize ESC rights for all citizens over a longer period may also serve in the stead of individual reparations.

4. And how can socio-economic issues specific to TJ be distinguished from general problems surrounding the violation of economic and social rights?

In my view, what I have described above as the first set of ESC rights violations - which are directly related to the conflict and may be a weapon in the conflict - are clearly distinguishable from the general problems surrounding the violation of economic and social rights. Particularly where these violations constitute a violation of negative obligations e.g. starvation as a method of warfare, displacement as a technique of war, then there are clear victims, clear violators, and clear violations of particular provisions of human rights or humanitarian law, then these can be clearly delineated and set out as an issue of transitional justice. Reparations or restitution for individual victims, or even small communities, can be possible.

Of course, the second set of underlying causes is much more difficult to address and less easily distinguishable from general problems of economic and social rights. There are no clear individual victims, and there may not be clearly identifiable violators in the sense that they may result from broad economic and social policies or conditions that pre-exist even particular

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governments, let alone particular agents of government. Longer term structural issues are clearly difficult to resolve, but failing to push for some kinds of longer term change is likely to ensure that the peace will be unsustainable or at least unstable.