While the calls for justice abound in the aftermath of conflict or political transition, there is less clarity on the notions of justice underpinning such calls. Transitional justice as an overarching concept, encompasses the processes and activities societies undertake to address past human rights violations and abuses after conflict or political turmoil. At the heart of this enterprise are contentious notions of truth, peace, reconciliation and justice.
In the last decade, calls to broaden the notion of justice from a focus on legal justice to encompass distributive justice have gained traction, where distributive justice seeks to guide the allocation of the benefits and burdens of social and economic activity in a given society. For the most part this is because the experiences and perceptions associated with this allocation are commonly identified as a key component of the underlying causes and drivers of conflict. Yet despite the rhetoric from the international community and various national governments that transitional justice needs to address the underlying causes of conflict, in practice there has been scant attention given to distributive justice claims.
Calls to broaden the transitional justice agenda are not unanimous. In fact, there are fears that transitional justice is already overburdened with overly ambitious and perhaps even irreconcilable goals and aims. And yet, if transitional justice is the means by which society endeavours to build a more stable and peaceful society, the question that should be answered is: how can this enterprise exclude distributive justice? Indeed, the failure to promote distributive justice seriously jeopardises the prospects for sustainable, positive peace.
Transcending a false dichotomy
Distributive injustice encompasses social, economic and cultural grievances and rights violations, including the perceived or real injustices in the distribution of resources, opportunities and power. Economic, social, and cultural rights (ESCR) include those human rights relating to housing, food, water, health care and education while civil and political rights (CPR) include those rights relating to freedom of speech and expression, participation in civil society and politics and ensuring an individual’s physical integrity and safety. While the Universal Declaration of Human Rights makes no division between human rights, over time there has been a tendency to separate and prioritise CPR over ESCR and this dichotomy has been imported into transitional justice processes.
Economic, social and cultural rights violations are often the root causes of conflict and political turmoil. The conflict in Nepal (1996 – 2006) was fought on grounds of distributive justice. Several studies have concluded that the primary causes of the conflict were economic and social grievances, including landlessness, poverty, uneven development, structural, identity-based exclusion and inequality. The post-election violence in Kenya, triggered by the irregularities in political elections, was fuelled by deep-seated disenfranchisement, discrimination and poverty. The South African apartheid was based on inequality and discrimination, including landlessness, a lack of healthcare and education. Also, in Sierra Leone and Liberia, inequality, exclusion and poverty, including issues relating to land tenure and distribution, were deemed to be among the root causes of the conflict. It was these long-term structural injustices – based on inequality, political repression, and/or ethnic and religious divisions – which were often manipulated and mobilised to fuel the violence.
In most, if not all, of these countries, civil and political rights abuses such as illegal detention, torture or murder, were abundant. However, these types of CPR abuses and injustices were sometimes the symptoms not the causes of the turmoil, while other CPR violations such as endemic political corruption were inextricably linked to ESCR injustices. And yet transitional justice processes have focused almost exclusively on CPR violations and relegated ESCR violations to second place, if they are dealt with at all.
This is problematic because a narrow interpretation of human rights violations, as Ismael Muvingi posits, “urge[s] the oppressed and the poor to fight their governments over freedom of movement or speech but not to demand change of the prevailing economic arrangements that impoverish them.” Correcting civil and political injustices is crucial. Nonetheless, economic, social and cultural rights should be addressed simultaneously and in tandem in transitional justice discourse if it is to have a transformative effect on transitional societies. Against this backdrop, how can transitional justice have a greater impact on reducing economic and social inequality?
The shift towards a broader notion of justice
The focus on legal justice has been justified in part by the argument that restoring the rule of law sends a clear signal to civilians and combatants that there will be order, security and stability; while in the long-term the rule of law provides a forum for settling disputes, safeguards personal freedom and deters future conflicts. However, this emphasis on the rule of law in peacebuilding interventions ultimately reflects a preoccupation with the effects, rather than the causes, of conflict. As the former UN Commissioner of Human Rights, Louise Arbour, argued:
Transitional justice must have the ambition to assist the 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.
Advocating for a broader understanding of justice academic and practitioner Rama Mani states that justice encompasses at least three aspects:
2.legal justice (or the rule of law, which involves the (re)establishment and strengthening of the legal apparatus); and
3.rectificatory justice (the restorative capacity of transitional justice, which involves addressing human rights violations, crimes against humanity and war crimes).
The rationale for addressing distributive justice is to prevent the recurrence of conflict by dealing with the economic, social and political violations and grievances that spurred the conflict; and to build sustainable foundations for lasting peace.
This view has since been echoed by a variety of experts, academics and practitioners. A recent example was raised at an expert consultation on transitional justice with African Union Member States, in relation to efforts to draft an African transitional justice framework. Participants included representatives from various AU Member States, the Secretariat of the Panel of the Wise, UN Women, independent experts on transitional justice and representatives from civil society, with one participant declaring that “issues relating to cultural, social and economic rights should be at the ‘front burner’”; a view that was supported by most of the participants. But it is not only external and national actors who have argued for this shift, but victims, perpetrators, community members and elders: the very voices that are noticeably absent from the majority of academic and practitioner forums, and yet are the very people who should be directing and designing the transitional justice enterprise if it is to lead to long-lasting peace.
While there is a dearth of analysis of the voices of these conflict participants, from the number of studies available it is clear that when people are asked what justice means to them it is essentially justice issues that impact their daily lives and involve distributive justice. In Nepal, a survey of 811 Nepalese victims entitled ‘Nepali Voices: Perceptions of Truth, Justice, Reconciliation, Reparations and the Transition in Nepal’ indicated that both social and economic inequality and exclusion are considered to be the primary causes of the conflict, with most of the victims surveyed stating that their most urgent concerns and needs were economic and social. A prominent Nepali Dalit lawyer, Ratna Bagchand has repeatedly highlighted that Dalits “are ready and willing to start the next revolution if the country does not effectively address structural inequalities and fulfil Dalits’ economic and social rights.”
Calls for distributive justice are similar in other transitional societies. In Sierra Leone, victims cited free education, adequate housing and access to medical care as areas that the Truth and Reconciliation Commission should address and make recommendations on. For Liberians, health and education were the respondents’ highest priorities. For Cambodians, their priorities were jobs and meeting basic needs, such as food and health. When probed for what their specific choices were, the Cambodian respondents held that focusing on problems that they face day-to-day was more important than addressing the crimes committed during the Khmer Rouge regime. These findings are consistent with similar findings in northern Uganda and in eastern Congo where surveys also revealed that livelihood concerns and basic needs superseded accountability as priorities.
It is evident that the calls for greater attention to be given to distributive justice are gaining momentum from a range of stakeholders but the ability of transitional justice mechanisms to sufficiently address these calls has been limited to date.
Looking to the past with an eye to the future
To overcome the lack of engagement on distributive justice issues, transitional justice mechanisms need to harness the opportunity to be both retrospective and prospective; after all, as Peter J. Pham writes, “[j]ustice in the future cannot be achieved unless the injustice of the past . . . is addressed.” A holistic transitional justice approach must include measures that examine a country’s structures, history and inequalities that caused or fuelled the conflict, and this should be coupled with forward-looking measures which seek to meet basic needs and realise socio-economic and political rights for all. In essence, this two-staged approach requires transitional justice actors to alter their attitude from presuming to consciously promoting equality and justice.
It is beyond the scope of this article to assess the extent to which all transitional justice mechanisms – which include criminal prosecutions, memory sites, amnesties, truth-telling commissions, reparation programs, and vetting processes – have the capacity to encompass distributive justice concerns. The following section outlines the means by which two measures, reparations and truth commissions, have addressed distributive justice.
Reparations have been heralded as direct, tangible, victim-centred means to overcome structural conditions of exclusion and inequality. To date the ‘success’ of the Moroccan reparations program – recommended by Moroccan Equity and Reconciliation Commission – has been the exception, not the norm. The reparations program targeted vulnerable individuals, communities and regions having both a developmental and symbolic dimension; developmental in that the program seeks to meet economic and social needs, and symbolic in that the reparations – through the conversion of former detention compounds into social, cultural and economic centers and memorials – acknowledge and preserve the memory of past abuses.
Truth commissions have perhaps the greatest potential to address distributive justice concerns in both a retrospective and prospective manner. Truth commissions can be retrospective, examining the root causes of the turmoil or conflict and politicising issues relegated to be merely ‘historical’ while also being prospective by issuing recommendations that provide leverage for local lobbying efforts and orient and catalyse the national agenda and reforms. Put simply, the national script (which is hoped to be created via the truth commission report) can create impetus for a national conversation on socio-economic reform. However, in practice, to date most truth commission have relied upon a narrow paradigm of what constitutes human rights violations.
The challenge of implementation
Notwithstanding the potential of truth commissions in this regard, there remain the challenges of implementation that apply to any truth commissions’ recommendations: limited resources, misplaced priorities and a lack of political will. For example, the Liberian Truth and Reconciliation Commission was among the first of the African truth commissions to have an explicitly broad mandate to include economic and social aspects. However, the Commission paid inadequate attention to these ESCR violations and provided limited recommendations to remedy them. In varying degrees the truth commission reports from Peru and Guatemala touched upon the socio-economic structures within which human rights violations took place, but their recommendations remain unimplemented. One notable exception was the educational recommendations proposed by the Peruvian Truth and Reconciliation Commission. These recommendations comprised one of four sets of “essential institutional reforms”, to which the Peruvian Ministry of Education responded by indicating how these recommendations aligned with its reform priorities. This is one example of how, through truth commissions’ recommendations, socio-economic issues such as education can be aligned with, and create momentum for, distributive justice in transitional societies.
There appears to be a shift, albeit slight, towards truth commissions paying greater heed to economic, social ad cultural rights violations. In Timor Leste, the Commission for Reception, Truth and Reconciliation (CAVR) had an expansive mandate to uncover the truth about human rights violations including the factors, circumstances, context and motives which led to those violations during the 24 years of Indonesian occupation. The Commission looked beyond civil and political rights abuses to include economic and social rights violations (e.g. raising issues of famine, displacement and illness). CAVR noted that:
As its work in the area of truth seeking progressed, the Commission increasingly found evidence of both direct violations of social and economic rights and of the close inter-relationship between the violation of those rights and the abuses of civil and political rights that had been the chief focus of its work. It decided that this reality should be recognised in its final report.
However, notwithstanding the profound impact of economic and social violations, witnessed by the fact that the overwhelming majority of the 100,000 deaths (84,200) were due to hunger and illness, the CAVR recommendations precluded victims of economic and social rights violations from consideration as beneficiaries for reparations (for reasons of “feasibility and needs based prioritisation”, according to CAVR’s final report). It is clear from this example that an integrative transitional justice program infused with a broader notion of justice is paramount, but will not emerge without the political will to carry out an effective implementation strategy.
From this brief snapshot it is evident that there is scope for transitional justice to address distributive justice, examining past injustices in a more expansive and holistic manner in order to catalyse and inform reforms. Beyond the normative shift needed for this to happen, practical constraints remain. By harnessing the links between transitional justice and development there is potential for people working in these sectors to cooperate further and work in tandem to meet these constraints, guided by a greater appreciation of distributive justice endeavours.
As argued by Tim Murithi and myself, transitional justice cannot be expected to solve the complex political, social and economic problems transitional societies face, and yet efforts to reveal the truth by providing a ‘complete’ narrative of the past without adequate reference to the root causes of conflict and political turmoil fundamentally limits the remedial utility of the transitional justice process.
Any measure of justice is incomplete unless distributive justice is adequately addressed. It is vital that transitional justice processes employ not only a retrospective but also a visionary approach, to enable political and socio-economic inequalities to be addressed. By shifting from a narrow paradigm of justice to one that encompasses notions of distributive justice, transitional justice may have a far greater transformative effect, forging new pathways for the survivors of conflict.