The field of transitional justice has historically focused on violations of political and civil rights. Where conflict and group divisions are embedded in deeper socioeconomic inequalities and legacies of exploitation, however, processes and mechanisms may be limited in their impact if they fail to link to broader economic and social transformation (Brankovic & van der Merwe, 2014). There have been growing calls in the past decade by transitional justice actors to expand the field’s focus to socioeconomic disparities and inequalities and systemic marginalisation (see Fletcher et al., 2009; Brankovic & van der Merwe, 2014; Gready & Robins, 2014; Szoke-Burke, 2015). This would allow for greater attention to the roots of conflict and grave violations—and could contribute to more stable and sustainable political transitions (Fletcher et al., 2009).
The main approach to incorporating socioeconomic issues into transitional justice emphasised in the literature is the promotion and enforcement of economic, social and cultural rights (ESCRs) (Brankovic & van der Merwe, 2014). The truth commissions in Kenya, Liberia, Peru, Sierra Leone and Timor-Leste have discussed socioeconomic marginalisation of specific identity groups and investigated and made recommendations on ESCRs. However, in general, structural inequalities and ESCR violations have received little attention in practice (Brankovic & van der Merwe, 2014; Gready & Robins, 2014).
Arguments in favour of including violations of ESCRs in transitional justice include:
- Socioeconomic grievances are often an important element of conflict dynamics and atrocities and thus need to be properly investigated and understood (Szoke-Burke, 2015).
- Victims and local populations often prioritise these rights and issues (Gready & Robins, 2014). A study on perceptions of the TRC in Sierra Leone, conducted in a town in the rural north of the country, found justice for those victimised by social and economic violations necessarily included a new social, economic and political order in which social services such as education, health care and jobs were a possibility (Millar, 2011).
- Properly addressing ESCRs and socioeconomic injustices—which may have been part of the root causes of conflict—could contribute to preventing the renewal of violence and human rights violations (Gready & Robins, 2014; Szoke-Burke, 2015).
- These rights are considered non-negotiable (Szoke-Burke, 2015). In addition, the human rights field has stressed the equal importance and indivisibility of civil–political and socioeconomic rights (Gready & Robins, 2014; Schmid & Nolan, 2014). ESCRs are now justiciable in many forums (Szoke-Burke, 2015).
- Highlighting ESCRs could contribute to the development of a fuller conception of rights and justice in transitioning countries (Gready & Robins, 2014).
Despite these considerations, many commentators advise caution when considering whether to include ESCRs within transitional justice mandates. They believe this would require transitional justice to delve into development issues, and that its tools and strategies are not well equipped to do so (see Szoke-Burke, 2015). There are concerns that including such rights would produce overly high expectations that transitional justice could eradicate poverty and inequalities or ensure socioeconomic development. This would be particularly difficult given the time-limited nature of transitional justice initiatives and the limited funding available to them (Szoke-Burke, 2015).
Others feel that, while such expectations would indeed be unrealistic, transitional justice could still make an important contribution (Schmid & Nolan, 2014). For example, forced displacement—which involves violations of the right to an adequate standard of living and housing, among other socioeconomic rights—can be the subject of truth finding and recommendations. In some cases, the mere acknowledgement of ESCRs may be sufficient to push the state to fulfil its obligations to prevent breaches of these. In addition, the civil and political violations and rights that transitional justice seeks to address, such as ensuring the right to a fair trial, involve long-term processes (Szoke-Burke, 2015).
Some transitional justice scholars recommend going beyond human rights discourse towards a more ‘transformative justice’ discourse, questioning the liberal political and economic agendas that underpin the field (see Brankovic & van der Merwe, 2014). They argue transitional justice processes have the potential to reveal the continuities between past and present socioeconomic exclusion and structural harms. A reconceptualisation of transitional justice would enable actors to pay more attention to socioeconomic issues in addressing the legacies of abuses, bringing together economic with legal, psychological and political justice to transform structures and relations (Waldorf & Lambourne, cited in Schmid & Nolan, 2014). There are concerns, however, that this would result in a model that includes too much and is overstretched and impractical.
One strategy to rein in the extension of transitional justice to cover violations of all socioeconomic rights is to develop a categorisation of harms and focus on the concept of subsistence harms (Sankey, 2014). Subsistence harms comprise ‘deprivations of the physical, mental and social needs of human subsistence’. They constitute particularly grave harms, involving direct forms of violence—attacks on homes, livelihoods and basic resources—and producing devastating, long-term impacts on survivors and communities (Sankey, 2014, p. 126).
Various transitional justice mechanisms have the potential to explore and address socioeconomic issues and the fulfilment of ESCRs. Truth commissions have, to date, given their limited mandates, focused largely on violations of civil and political rights. In some rare instances, they have delved into socioeconomic issues and investigated violations of ESCRs (OHCHR, 2014). The Guatemalan CEH, for example, acknowledged that the state had deprived indigenous peoples of their traditional economic activities, caused their forced displacement and forced them into conditions of extreme poverty (OHCHR, 2014). Other commissions have addressed the socioeconomic roots of conflict without specific reference to the human rights framework. The Liberian TRC, for example, was mandated to investigate ‘economic crimes, such as the exploitation of natural or public resources to perpetuate armed conflicts’ (OHCHR, 2014).
Truth commissions could more routinely expand their mandates to explore the socioeconomic causes of conflict and make recommendations towards addressing poverty and structural inequalities that lead to violence (Laplante, 2008). They could characterise socioeconomic marginalisation as violations of ESCRs, which would trigger government obligations and facilitate civil society advocacy (Szoke-Burke, 2015).
Criminal tribunals have jurisdiction over international crimes such as genocide, crimes against humanity and war crimes. Several of these crimes are connected to violations of ESCRs, and this is reflected in some of the jurisprudence of international and hybrid tribunals (OHCHR, 2014). The ICTY, for example, has successfully prosecuted conduct that violated ESCRs, such as the rights to work, to health and to an adequate standard of living (Szoke-Burke, 2015).
Some of the literature emphasises that reparations programmes have great potential to produce socioeconomic impacts (Gready & Robins, 2014). They have the potential to directly affect victims’ socioeconomic position, involving the transfer of goods, money or other services to victims (e.g. compensation or restitution of land, scholarships or increased access to health services) in response to violations of ESCRs (Szoke-Burke, 2015). In order to maximise the impact of reparations, it is important to look at the structures that underpinned the harms done and to ensure acts of violence are not decontextualised. The role of reparations in unequal societies should attempt to transform the circumstances of victims away from poverty and discrimination (Gready & Robins, 2014). Chile’s National Commission of Truth and Reconciliation recommended the state adopt measures to improve the welfare of victims in areas such as social security, health, education and housing. Parliament passed a reparations law to implement the recommendations, so as to provide a certain level of economic stability to surviving victims in the form of pension payments and access to educational and health benefits (OHCHR, 2014).
Collective reparations can address collective harms and rights on a community level. They are a form of distribution of public goods or services designed to benefit all members of a particular community, group or region, rather than specific individual victims (Szoke-Burke, 2015). Some reparation programmes, such as those in Peru and Uganda, have framed development projects as collective reparations for the historic systematic exclusion of specific communities (Brankovic & van der Merwe, 2014).
Large-scale reparations, such as the construction of hospitals, schools or infrastructure, can serve to remedy violations of the rights to health, education, water etc. (Szoke-Burke, 2015). There are some concerns, however, that reparations programmes will conflate a state’s developmental obligations with its duty to redress victims (Brankovic & van der Merwe, 2014). Reparations should not become a substitute for development (Gready & Robins, 2014). In addition, the impact of reparations programmes on the realisation of ESCRs may be limited, given that such programmes often face serious implementation and financing problems (OHCHR, 2014).
- Brankovic, J., & van der Merwe, H. (2014). Transitional justice in post-conflict societies: Conceptual foundations and debates. In forumZFD, Moving beyond: Towards transitional justice in the Bangsamoro peace process (pp. 10–15). Mindanao, Philippines: forumZFD.
- Fletcher, L. E., Weinstein, H. M., & Rowen, J. (2009). Context, timing and the dynamics of transitional justice: A historical perspective. Human Rights Quarterly, 31(1), 163–220.
- Gready, P., & Robins, S. (2014). From transitional to transformative justice: A new agenda for practice. International Journal of Transitional Justice, 8(1), 339–61.
- Laplante, L. J. (2008). Transitional justice and peacebuilding: Diagnosing and addressing socioeconomic roots of violence through a human rights framework. International Journal of Transitional Justice, 2(3), 331–55.
- Millar, G. (2011). Local evaluations of justice through truth telling in Sierra Leone: Postwar needs and transitional justice. Human Rights Review, 12(4), 515–35.
- OHCHR (Office of the High Commissioner for Human Rights). (2014). Transitional justice and economic, social and cultural rights. New York and Geneva: OHCHR.
- Sankey, D. (2014). Towards recognition of subsistence harms: Reassessing approaches to socioeconomic forms of violence in transitional justice. International Journal of Transitional Justice, 8(1), 121–140.
- Schmid, E., & Nolan, A. (2014). ‘Do no harm’? Exploring the scope of economic and social rights in transitional justice. International Journal of Transitional Justice, 8(3), 362–82.
- Szoke-Burke, S. (2015). Not only ‘context’: Why transitional justice programs can no longer ignore violations of economic and social rights. Texas International Law Journal, 50(3), 465–94.