The failure to realize economic, social and cultural rights as well as violations of these rights can be—and usually are—part of the root causes of conflict. Furthermore, the actions and omissions by States and non-state actors during conflict can also amount to violations of economic, social and cultural rights, and often have a particular impact on the most vulnerable. Yet, there has been no widespread move to include root causes and violations of economic, social and cultural rights in transitional justice processes.
This publication explores the ways in which transitional justice processes have addressed violations of economic, social and cultural rights, to gain a better understanding of the potential, challenges and limitations; and to provide stakeholders with recommendations.
Key findings:
- Transitional justice processes increasingly address economic, social and cultural rights issues, either as part of the root causes of conflict and repression or as violations occurring during the conflict. However, there continue to be different challenges that need to be addressed in theory and in practice.
- A first challenge is the need to prioritize the violations that will be included in transitional justice processes. It is important to identify criteria that could help stakeholders decide when to include violations of economic, social and cultural rights in transitional justice processes and how best to do so. If transitional justice aims to deal with large-scale atrocities, or with violations that are particularly characteristic of the conflict or repression, and these include violations of economic, social and cultural rights, then it should also deal with violations of these rights—as shown for example in Timor-Leste.
- As with violations of civil and political rights, not all violations of economic, social and cultural rights need to be included, but only those that are large-scale or particularly relevant to the specific situation. Lack of knowledge among transitional justice stakeholders of economic, social and cultural rights and of the mechanisms available to protect them constitutes another challenge. Unpacking the obligations deriving from such rights as well as understanding the United Nations and regional mechanisms able to strengthen their protection is essential.
- Some types of economic, social and cultural rights violations are more likely to be dealt with by transitional justice processes: for example, violations of State obligations to respect economic, social and cultural rights, and to protect them when the State was in a position to do so, violations of the prohibition of discrimination or gross failure to comply with minimum core obligations while illegal diversion of existing resources was apparent.
- A related problem lies in the institutional capacity of the different transitional justice mechanisms. All have the potential to address violations of economic, social and cultural rights and root causes to some extent but they face different limitations, ranging from a lack of human or financial resources to the nature of their mandates. Such limitations must be taken into account.
