Addressing historical and ongoing socio economic injustices through transitional justice processes

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Addressing historical and ongoing socio economic injustices through transitional justice processes

A debate has emerged over the degree to which transitional justice can and should go beyond its dominant focus on violations of bodily integrity to address socio economic exclusion as a root of conflict. What is practitioners' role in addressing deep-seated social, political, economic, and cultural divisions in transitional societies?

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Scope of TJ

A big welcome to all the conversation leaders and participants who have joined this discussion.

Transitional justice as a field emerged largely from the human rights movement in the 1980s and 1990s. It has gained strength from this established and widely reaching field, but some argue that it has also inherited the human rights bias of focusing on violations of civil and political rights while sidelining violations of economic, social, and cultural rights. Some practitioners and scholars argue that TJ must address socioeconomic rights violations given that they are often a root of conflict, and others argue that TJ must look beyond human rights discourse to address deeper past and ongoing socioeconomic exclusion and structural violence.

The dominant approach to TJ is still to focus on violations of rights linked to bodily integrity. Nonetheless, a handful of truth commissions worldwide have attempted to bring attention to issues of socioeconomic exclusion and this approach is receiving increasing interest in the field of TJ. What are your thoughts on this topic, in theory but also particularly in practice?

Scope of TJ

Dear Jasmina,

thanks for initiating the conversation.

The United Nations Secretary- General’s Guidance Note on the United Nations Approach to Transitional Justice (2010) calls on actors to strive and ensure that 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 (ESCRs). The Guidance Note further recognizes that addressing all violations of rights is very crucial for continuing peace. The High Commissioner for Human Rights has also argued that the inclusion of abuses of economic and social rights within post-conflict criminal prosecutions and truth and reconciliation processes is an important element of achieving social justice but one that has been largely neglected.

The above is a very important recognition, and one that must be acted upon especially given claims by actors that transitional justice has the capacity to also address root causes of conflict and right the wrongs committed during conflict.  Socio-economic exclusion as a major driver of conflict is not a contested fact, but the failure of past and present transitional justice processes to incorporate violations of economic, social and cultural rights is concerning.

TJ has traditionally paid more attention to civil and political rights, with less attention to ESCRs, having evolved as a field concerned with gross violations of rights like the right to life, war crimes, and crimes against humanity, which in the main didn’t not include ESCRs. Failure to recognise ESCRs in TJ is mainly linked to the narrow construction of the concepts of justice & victims, and non-recognition of ESCRs as entitlements equivalent to civil and political rights. TJ processes continue to perpetuate the dichotomy between Civil and Political rights on the one hand and ESCRs on the other, largely based on now archaic arguments of positive obligations imposed by ESCRs and progressive realization.

Looking at Uganda, The conflict in Northern Uganda was partly driven by the North- South divide that created feelings of marginalisation and inequity in access to public goods and development. During the war, massive internal displacement resulted in violations of various ESCRs including health, education, employment, adequate shelter, water and sanitation, food, land and property etc that any meaningful TJ process must provide redress for. The post-conflict phase remains characterised by conflicts over land, oil and forests, youth unemployment, poor social service delivery, economic disparities, corruption, unequal distribution of wealth, poor infrastructure, high disease burden, illiteracy, famine and hunger which threaten to plunge the country back into conflict. (Karamoja, W.Nile, Acholi) (see various reports by  the Refugee Law Project on the subject). However post-conflict discussions and reconstruction programmes continue to approach socio-economic issues merely as services or development goals.

Hoping that over the next days, we shall be able to discuss in detail how to effectively incorporate ESCRs in TJ processes such that we are better able to inform the ongoing process in Uganda as the country grapples with coming up with a comprehensive transitional justice framework.

Examples of TCs that have attempted to address ESCR?

Hi Jasmina - thanks for kicking off this discussion topic! You write:

The dominant approach to TJ is still to focus on violations of rights linked to bodily integrity. Nonetheless, a handful of truth commissions worldwide have attempted to bring attention to issues of socioeconomic exclusion and this approach is receiving increasing interest in the field of TJ.

Could you (or others) share a few examples of the truth commissions who have attempted to bring attention to socio economic exclusion? What was the outcome and impact of these attempts?

Thanks!

- Kristin Antin, New Tactics Online Community Builder

East Timor's truth commission: chapter on social economic rights

East Timor's truth commission (CAVR, Commisao Acolhimento Verdade e Reconciliacao) produced a specific chapter on violations of social economic rights. You can download the pdf version of the report from www.cavr-timorleste.org.  An excerpt from Pars 5 & 6:

" Waves of violence and the extreme political and social repression and control exercised by the Indonesian military seriously hampered activities that were fundamental to making a day-to-day living, including movement, farming, and the ability to transport and market goods.

Violations of economic and social rights did not occur only as a by-product of military operations, however. Even at times of relative normality, security concerns, which sometimes became intertwined with private and corporate interests, took precedence over the well-being of the East Timorese people. The explicit use of education as a propaganda tool, rather than to meet basic learning needs, restricted children’s development and future opportunities. The permanent resettlement of entire villages in areas that had previously been avoided because of their poor soils and malarial conditions endangered people’s health. The manipulation of coffee prices to fund military operations and benefit military and civilian officials personally limited farmers’ chances of making an adequate livelihood. The unsustainable and destructive extraction of natural resources by government officials and their business partners undermined survival strategies and depleted the “natural capital” on which East Timorese people had expected to draw for many years to come. The preoccupation with security biased state investment towards areas such as road-building and the development of the government apparatus at the expense of agriculture in which the vast majority of East Timorese were employed"

[We are now just about to produce a printed English version of the CAVR report, entitled Chega! (or Never Again)]

Transitional justice has largely maintained its focus on contexts where mass crimes, or 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, disapperances, rape etc. And in a way, these atrocities require so much attention that we forget to look at the (social economic) roots of conflict and the social economic impact of conflict. After more than a decade working in this field, I think, whether we can successfully contribute to addressing structural inequality will be the “make or break” test for transitional justice.

Its important to remind ourselves of the indivisibility of rights & that many a human rights conferences have been dedicated to reconciling the forced seperation of the “conjoined twins” called human rights. Back in the 90’s the international community and the women’s movement affirmed that these rights are one and the same. So, for those of us working on TJ the question is not should TJ look at social economic cultural rights, but how? For victims, the distinction between civil political rights and social economic cultural rights are artificial. 

Re: Securing ESCR through TJ in Uganda

Hi Salima,

Your post is very interesting, and we are happy to know there are organisations working on these crucial objectives.  We would be so happy to connect more and learn about this important work in detail.

There are so many programs in the North which seem to be irrelevant, at best, and sometimes counterproductive to securing ESCR.  The kinds of structural injustices the regions have faced require undoing the effects of cultural violence, displacement, ecological violence, etc. but rarely do these many nonprofit programs actually address these problems critically.  With the abundance of NGOs, the standard of living in some more urban areas has become difficult to manage and this lack of holistic thoughtfulness demanstrated by NGOs has resulted in a strange economic market.  People are now going to nonprofits for jobs and financial opportunities rather than returning to the land to dig.  There is a new shift in values which is collapsing in on itself.  NGOs have almost single-handedly rebuilt the infrastructure, but not necessarily to the benefit of the common person.  Development seems to be evaluated with only economic indicators in mind, which is short sighted and has resulted in several negative side effects.

But it seems Kayo Cuk, Culo Kwor, Mato Oput, etc also have their shortcomings in the current context.  These practices seem to be beneficial in hyperlocal settings, but our world has changed and there are now many stakeholders involved in reparations, human rights protection, land rights, etc.  One cannot simply ask Gen. Museveni & international oil affiliates to attend a TJ ceremony to resolve an issue.  How can we create or modify TJ so that it appeals to the interests of all stakeholders and addresses conflict holistically?  How do we use TJ mechanisms when power relationships are grossly imbalanced?  Might this involve some kind of collaboration between local, national, and international bodies (which sounds like a terrible logistical challenge)?

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Re: Securing ESCR through TJ in Uganda

Dear Solidarity Uganda,

 

I think one of the key mistakes that was made regarding transitional justice in Uganda was to confine its framing to the Justice Law and Order Sector and leave implementation of reconstruction efforts to the Office of the Prime Minister. The result is that other line Ministries like the MInistry of Health, Education, Gender, Labour and Social Development that would enhance ESCRs were left on the sidelines, and do not think they have a role to play in Transitional Justice. 

What JLOS has done is to concentrate on mainstream justice issues like prosecutions (which so far are not moving) and taking their time in coming up with a reparations programme. The approach of OPM in post conflict reconstruction is merely to look at PRDP implementation as a development goal, and offer some services, without considering that all people who were affected by the war have a right to an effective remedy, whereby for some of them, it is to get proper medical treatment in order to heal their physical or psycological wounds (Oola should provide the video RLP did on this) , catch up on lost education through some form of skilling, or get an economic start. this was has been left to non-governmental actors who owing to limited resources are limited in coverage.

Going forward, the transitional justice policy must incorporate roles for other line ministries that would be held to account for failure to deliver on ESCRs, and the country should treat reparations from a rights angle, where by all persons are entitled to an effective remedy. 

TJ, ESC rights, and land

Several truth commissions have had consideration of the historical roots of conflict in their remits.  Yet full consideration of economic and land inequality has been difficult.  I would love to hear from Kenyan colleagues about the outcome of the truth commission's report there.  That report included a very controversial section on land (and land-grabbing) which was not included in the final report, but was leaked later (as I recall this).  What effect has that controversy had on current debates, which continue to center around land and resources?

I also look around and see that in many countries that went through extensive TJ measures land and resources, and the protests against land and resource grabbing, continue to be central to the country's troubles.  How can we do a better job under the heading of "guarantees of non-repetition" to look not just at justice systems and police but also at the underlying marginalization and exclusion of large segments of the population?  This seems to me to be the key here.

Notifying some of our community members in Kenya

Great questions, Naomi! I am tagging a few of our community members in Kenya who may be able to comment on this, or find folks who could. Thanks!

- Kristin Antin, New Tactics Online Community Builder

Hi Naomi,

Hi Naomi,

I am afraid that the process in Kenya has been seriously delayed, if not shelved. The TJRC report was handed over to the President last year May, and according to the TJRC Act should have been acted upon. Unfortunately, then parliamnet went ahead and amended the Act, so it now says they can 'consider' the report, without specifycing what that means. But it seems they will want to make changes to the report. Just last week, civil society used the first anniversary of the report to draw attention ti it again. See: http://www.capitalfm.co.ke/news/2014/05/civil-society-ignites-debate-on-...

Anneke

 

regarding land rights in TJ

A Kenyan colleague and guest trainer for our activities noted while training our staff that "almost every conflict in the whole Rift Valley of greater East Africa is connected somehow to land."  It is part of human and collective identity, as well as a crucial resource for the common person's survival and wellbeing.

The community in which we primarily work in Northern Uganda has indeed been involved in the justice system to protect their oil-rich, fertile land from military, government, and corporate land grabbing.  But they have recognized that the legal system is broken and has failed them, with trials regarding their land taking place more than 4 hours' journey from the actual location of the conflicts, not to mention bribery in the courts and a political elite stationed locally that do not originate from the region in conflict.  For several years, a land conflict spanning 100,000 + acres has been occurring as local residents have suffered multiple mass displacements, arson of villages by government agencies, and even deaths.  Together with CBOs and national NGOs, we have formed a collective working to prevent this land grab and the human rights abuses that come with it.  Strategic nonviolence trainings have been helpful, but equally helpful have been projects that emphasize human rights documentation.  Currently, we are collaborating on a feature-length documentary, and camera/mobile phones distribution has allowed the community to document instances of abuse and violence and even prevent illegal arrests and detainments (Refugee Law Project also has produced some research videos on this conflict which are available on Youtube).

Whatever methods we pursue, it is clear that we cannot rely on the cooperation of rich and powerful government elites.  They may play a role along some point of the journey, but reliance upon them is fleeting at best, especially when local governments are refusing to grant land titles or other land documents.  Locals have reverted to cultural systems of land exchange and dealings, and have pledged not to share information about internal land exchanges with outside research groups or government departments.  This may not be a good long-term strategy, but it is helpful in the short-term.

Building community solidarity and commitment is also important.  It is less quantifiable, but necessary as local people are often bribed to spy on behalf of "outsiders" who seek to obtain natural resources.  With small informal dialogues, we have even managed to "re-convert" some bribe-accepters back to their own people, because the moral pressure and accountability structure within small hyperlocalized groups is too strong.  It is certainly a complicated, dynamic situation, but a fundamentally important struggle, this issue of land rights.

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Building momentum to recover lost land in South Africa

Thanks for sharing your perspective on this from northern Uganda. It's helpful to hear from you and others about the tactics being used there to build awareness around the issue, nonviolent action, and collaboration. I wanted to share this creative tactic used by District Six Museum in South Africa to recover lost land.

In 1966, as a result of the Group Areas Act, the racially integrated neighborhood of District Six in Cape Town was razed to the ground to make way for a new “whites only” development, but construction never took place. The only buildings left were houses of worship.

As part of a campaign to defend the land and community integrity, a group of former residents built an exhibition with a map of the old area as the central installation. They covered the floor of a Methodist church with a detailed map of their destroyed neighborhood, and invited their neighbors to place their homes, streets, stores and com­munity spaces on it.

This memory-mapping project became the foundation for land reclamation claims. The museum organized and hosted one of the Land Courts, where people could establish formal claims to land they or their families owned. Former residents sat in chairs directly on the map of their old neighborhood, as the court granted them, in the words of one, “our land back, our homes back, our dignity back.” Since then, the museum has developed exhibi­tions on the histories of smaller neighboring communities destroyed under the Group Areas Act, including Kirst­enboch and Two Rivers, to publicize and support their unresolved land claims.

I think this tactic, of building awareness of mobilizing supporters, speaks to Patrick's comment in which he writes: I would say that ninety five percent of the work on TJ that we do in these transitional contexts is not focused on implementing mechanisms but rather is the strategic actions we take to build the demand for transitional justice, and the capacity to implement the mechanisms.

What other tactics have been used to reclaim lost land within the context of transitional justice?

- Kristin Antin, New Tactics Online Community Builder

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TJ, ESC rights and Land

Thanks for bringing up this Naomi, many conflicts are triggered by long standing socio-economic inequalitie revolving around land possession, and in post conflict situations, especially those that involve displacement like Uganda, the question of land becomes key. The issues range from property restitution, illegal allocation of land to investors in the name of post conflict reconstruction and investment, management of natural resources and land grabs. In terms of securing guarantees of non-repetition, the TJ proposals for institutional reform should move beyond the narrow focus on the army, police and and judiciary to include key institutions and policies that would not only address social justice issues, but also revamp or create mechanisms responsible for providing oversight and ensuring reduction in social exclusion, for example Equal Opportunities Commissions and human rights commissions. There must be policy reforms regarding land management that ensure more equitable distribution of resources, guard against unfair dispossession, but also address historical problems that in many cases formed part of the root causes in the first place. 

Otherwise will be glad to hear from Kenya about how the land question is being handled. 

Role of corporate and economic actors

Embedded within this conversation topic is the focus on the socio-economic forms of harm we endure. I want to expand this to consider who are the range of socio-economic actors which inflict harm. 

From my experience working with a range of UN courts, it is patently obvious that powerful economic actors behind human suffering are always, always, beyond the scope of accountability. Even the structure of international law is built to reinforce this exclusion of accountability. This is a dramatic and disgusting form of structural violence and discrimination which privileges the powerful. It is not surprising that the law has developed this way given what we know of world history (international law also reflects gender discrimination as Hilary Charlesworth and Christine Chinkin have pointed out, and race discrimination as Makau Mutua has pointed out). But, what continues to surprise me, is our continuing struggle to find ways to broader our notion of responsibility to include economic actors. 

There are several ways we can target economic actors. First: find the facts. Investigations in this area are challenging - the facts and evidence is deliberately complicated. Second: reconsider the legal framework in light of the facts. There are some who advocate for legal reform in order to extend responsibility to the corporation itself, rather than the individuals within the corporate. Although such debates are intellectually interesting, I believe that in this stage of our limited global awareness of this issue, the immediate priority is to increase awareness that economic acts can be legitimately linked to harm within existing legal or transitional justice frameworks. 

Civil tort actions & lawsuits to hold corporations accountable

Thanks for introducing the role of corporate and economic actors to this discussion, Alison! I'm not a lawyer and don't know a lot about how this stuff works, but I wanted to share a few examples and resources we've collected from the New Tactics community on this concern.

We have a tactic example titled: Filing a civil tort action against a multi-national organization for human rights abuses that occurred as a result of a business. While I'm not sure if this relates that well to transitional justice (I'd like to hear from you all whether this does) I thought it might still be a useful example to share. It's not hard to imagine how a tactic like this could be used in a post-conflict context.

A group of Burmese laborers who were forced to work on a pipeline project in Myanmar successfully filed suit against two co-venturers in the pipeline project, Unocal and Total.  They claim that the two transnational corporations knew and profited from the fact that the military of Myanmar was using violence and intimidation to relocate villages, enslave farmers, commit rape and other torture, steal land and force persons to work on the pipeline.  With the help of lawyers from organizations such as Earthrights International, the Center for Constitutional Rights and the International Labor Rights Fund, as well as several private law firms, the case went through California courts in 2000 to 2002 (you may have more updated information on this case). Ultimately, the court found that Unocal knowingly assisted the Myanmar military in the perpetration of human rights abuses and that forced labor is the “modern equivalent of slavery.”

This case is significant because it holds a transnational corporation accountable for human rights abuses from which it has profited.  In addition, it sends a message to other transnational corporations that they will be responsible for human rights violations connected to their business ventures in countries with repressive governments.

On a related note, we also hosted an online discussion on the topic: Corporate Accountability Beyond Borders: Exploring home states’ efforts to protect against business-related human rights abuses. You will find a summary of this discussion by using the link above and it includes a list of resources for practitioners and examples of when this tactic has been used. One interesting tactic that might relate directly to transitional justice context is the ability to bring lawsuits against company complicity with repressive governments. Yahoo! Inc. provided private information of email users to the Chinese government, which in turn detained and prosecuted human rights advocates and journalists. The activists filed suits against Yahoo! Inc.

How do these examples relate to transitional justice processes today? What other examples exist of holding corporations accountable within the context of transitional justice?

- Kristin Antin, New Tactics Online Community Builder

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Civil tort actions & lawsuits to hold corporations accountable

Kantin, civil tort action and law suits to hold corporations accountable can be effective, but we should be very mindful that many corporate actors have a lot of influence, especially over many small economies, and in some cases, justice may not be served. Therefore the discussion you mentioned regarding  Corporate Accountability Beyond Borders: Exploring home states’ efforts to protect against business-related human rights abuses is very useful. We must also not lose sight of efforts to create international normative framework around business and human rights that would make corporates more accountable going forward. On 16 June 2011, the UN Human Rights Council endorsed the "Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework" proposed by UN Special Representative John Ruggie. But more needs to be done in terms of coming up with more binding international instruments.

TJ actors however should be very careful not to limit violations of ESCRs to economic violations. We must have a holistic approach that addresses actual violations starvation, destruction of propoerty, lack of medical services etc. In order to address the issue of guaranteeing non-repetition, reparations must necessarily address ESCR violations, and also peacebuilding efforts must point out social and economic exclusion as a cause of conflict. I found this publication of the UN office of the High Commissioner for Human Rights that discusses in detail the idea of transitional Justice and Economic, social and Cultural rights. The publication is available at: http://www.ohchr.org/Documents/Publications/HR-PUB-13-05.pdf

RE: Role of corporate and economic actors

Other economic actors to think about in transitional contexts are the international financial institutions (the World Bank, International Monetary Fund and regional development banks). So often, the policy prescriptions they offer transitional countries (who are frequently also facing serious economic crises) adopt a free-market approach—prioritizing expenditure cuts, trade liberalization, privatization and deregulation. Such an approach often disproportionately burdens poorer households, further entrenching and even exacerbating the injustices that underpin conflict in the first place.    

In terms of finding the facts that uncovers these concerns, the investigative tactic that the Center for Economic and Social Rights has used is to analyze available socio-economic statistics to uncover patterns of deprivation and privilege. Our recent work in Egypt is an example of this (see: http://www.cesr.org/downloads/Egypt.Factsheet.web.pdf?preview=1).

Like so many other transitional contexts, Egypt’s successive post-revolutionary administrations have prioritized quick fix measures to address the country’s growing budget deficit, including cutting vital subsidies, increasing taxes on goods and services, and continuing to underfund essential public services. At the same time, there has been almost no effort to compel the country’s economic elite to contribute their fair share (read more: http://www.foreignpolicy.com/articles/2014/05/23/egypt_must_stop_penalizing_the_poor). Nevertheless, these issues are largely eclipsed in discussions about Egypt’s transition. With our partners in Egypt, we’ve worked primarily through the UN human rights mechanisms (the Committee on Economic, Social and Cultural Rights and the UPR) to try and get them on the agenda. It would be interesting to consider how to work through TJ mechanisms to do so, too.   

I agree with Naomi’s comment that the TJ lens allows the economic changes needed to advance ESCR to be seen as "exceptional" and thus has the potential to create broader political alliances in favor of change. But there’s also a risk that such “exceptionalism” will be used as a justification for trading off ESCR in the pursuit of economic "stability" and that’s a risk that human rights and TJ actors need to focus on more proactively, I think.  

Economic and social rights is an intensely political discussion

Adding on to what Salima has said, I think that it is crucial to re-emphasise the political nature of many economic and social violations. After all, more often than not the problem does not lie in inadequate resources but in the distribution of resources. For sure, big corporations play a significant role and need to be challenged. But let us not forget that ultimately this is an intensely political discussion. Solidarity Uganda quite rightly states that we "cannot rely on the co-operation of rich and powerful government elites". I agree. But we can't let them off the hook that easily. We have to challenge these elites and make sure that they deliver on their electoral promises, regardless of how naive (or impossible) that might sound. 

If we think of one of the main goals of TJ being to restore civic trust (as per de Grieff's definition), one of the most tangible indicators of this restoration of trust is through the fairer distribution of resources. But of course, time and again this has failed to take place. Whether in South Africa, Kenya, Uganda or elsewhere, politicians have continued to invest their energy into feathering their own nests and have failed the citizens they are supposed to represent. In fact, it seems that too often the rot that lies at the heart of governance structures remains untouched by transitional justice processes - or even, at times (such as in Uganda) it appears only to have only managed to further entrench it. Therefore it is vital that we challenge governments to re-align the way in which they deliver (and protect) economic and social rights to those they have been elected to represent and see this as a key component to any transitional justice processes.  

ESC rights -what does TJ add?

I agree with the above that the issue of distributive justice is key, and that TJ measures often fail to come to grips with the broad spectrum of ESC rights, and with corruption and abuse of power that make change more difficult. My question is, what does a TJ framing add to the discussion?  I've thought that perhaps it's that it allows the changes needed to be "exceptional" and thus creates broader political alliances in favor of change than would otherwise be the case.  Or perhaps it allows a focus on creating responsive institutions aimed at service delivery?  For example,one thing that people in several countries have complained about re administrative reparations programs is that if they're administered by existing health, education or finance authorities they end up reflecting all the shortcomings of the existing health, education or finance ministries, and so being the opposite of reparatory.  Perhaps a greater focus on ESC rights would focus more attention on reforming at least pieces of those line ministries?  Or is that a diversion of attention?

One other tactic that seems to come from a greater focus on ESC rights is putting antidiscrimination laws and agencies at the top of the list of where attention should be focused/monitoring should happen.  This is an area that TJ advocates, and funders, haven't in the past given that much priority to, I think.  It also ties into the gender discussion.

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