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International Research Seminar:
Towards a Conceptualisation of the Economic and Social Dimensions of Transitional Justice
8th 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?
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.
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?
Jacky Devis[1]
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 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.
Pilar Domingo
The 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.