It’s the Economic and Social Rights, Stupid!

24 October 2018   ·   Ruben Carranza

Transitional justice cannot prevent the recurrence of human rights violations if it does not address economic and social rights violations. For Germany’s transitional justice strategy this means: first, do not privilege criminal prosecution; second, provide technical assistance to local actors; third, become a voice for exploring and implementing remedies for economic and social rights violations.

Can transitional justice ever effectively prevent human rights violations from recurring if it does not try address violations of economic and social rights? This is one of the first questions donors like Germany and international policymakers who fund and promote transitional justice processes should ask.

Truth-seeking, reparations and prosecutions are relatively well-understood transitional justice processes (“TJ processes”) because they are represented by corresponding “mechanisms”: truth commissions, reparations programs and courts. In contrast, “guarantees of non-recurrence” and “institutional reforms” are not such obvious or tangible forms of justice. But while not offering direct forms of justice to victims, they do pursue transitional justice with the future in mind. 

To sustainably guarantee that past violations do not recur, measures should transform the conditions that made victims vulnerable to violations during conflict or dictatorship in the first place. Germany and other human rights-promoting and donor states must realize that supporting the default approach to transitional justice is not sustainable if the goal is to prevent the recurrence of conflict and dictatorship. For frustration over economic inequality and fears of marginalization can leave the door open for fascism and authoritarian rulers.

The historical exclusion of economic and social rights

By default, most transitional justice processes – relying on UN guidelines such as the 2005 Orentlicher Principles on impunity – merely focus on civil and political rights violations as well as those involving physical integrity. They have excluded and ignored economic and social rights violations. However, in many societies undergoing transitional justice processes, violations of economic and social rights have caused conflict. Transitional justice policymakers as well as donors should accept that economic and social rights violations are human rights violations that should be prevented from reoccurring.

A change in this direction is emerging, but donors like Germany can explicitly promote it. In 2011, the UN Secretary-General noted that “truth commissions should also address the economic, social and cultural rights dimensions of conflict to enhance long-term peace and security.” This shift represents a very important legal and policy foundation for incorporating economic and social rights violations in transitional justice, including in guarantees of non-recurrence.

Implementing the shift: The case of Tunisia 

The case of Tunisia demonstrates what a transitional justice process can look like that largely respects economic and social rights – which were demanded bythose who made transition happen.  The Arab Spring and the Tunisian revolution in 2010 were driven by grievances over unemployment and marginalization. During the revolution and until today, young Tunisians see employment and opportunities for livelihood as manifestations of dignity, and placed at the center of the transitional justice process. This is captured in the mandate of the Truth and Dignity Commission. To guarantee non-recurrence, the commission addressed the systematic and widespread violations of economic and social rights in the past. For example, it filed criminal charges against the officials who were responsible for the 1984 ‘Bread Riots’ massacre that killed over 100 protesters protesting against the rising cost of bread. Furthermore, the social and economic marginalization of the country’s interior region was a subject of transitional justice covered by truth-seeking, reparations and recommendations for non-repetition that had come from both government and non-government stakeholders. 

Do not privilege criminal prosecution 

There are three basic and incremental ways that Germany and other donors can support guarantees of non-reoccurrence in general, as well as preventing the reoccurrence of social and economic rights violations specifically. First, they can ensure that their financial and technical assistance to TJ processes do not, by intention or otherwise, privilege criminal prosecutions. Privileging criminal prosecutions means privileging punishment over victims’ needs and over measures that prevent future violations. Given the historical imbalance between funding for prosecutions and funding for all other transitional justice mechanisms, there should be a deliberate effort to correct this imbalance, both at the outset and in the long term.

At the UN, Germany should insist that proposals not only create criminal, accountability-focused commissions of inquiry or hybrid courts but also include corresponding inquiries and the documentation of economic and social rights violations during or leading up to conflict. This can inform future truth-seeking, reparations and non-recurrence initiatives. Through its bilateral assistance, Germany should fund partnerships between civil society groups working on economic and social rights and NGOs working on transitional justice so that they have the opportunity and resources to collaborate. One example to follow is the International Center of Transitional Justice’s partnerships with the Tunisian Federation for Economic and Social Rights (FTDES), as well as with youth organizations that link issues of employment, corruption and accountability in Tunisia, such as Manich Msamah.

Provide technical assistance

Second, donors should make local policymakers who design transitional justice processes aware of the fundamental importance of addressing economic and social rights violations. While this seems like an obvious step, calls from donors have the highest impact in what is still a donor-driven field.

Additionally, donors can provide technical assistance to local actors directly and where it is needed most. Germany has been an exemplary provider in this respect. It has offered technical assistance to support victims’ rights to truth and reparations in countries such as Kenya, Colombia, and the Philippines, using its own knowledge and history of reparations and memorialization. In these countries, transitional justice processes have directly (such as in Kenya and the Philippines) or indirectly (like in Colombia) addressed economic and social rights violations.

But even in these places and elsewhere, Germany can and should be more deliberate in working with local and international groups seeking to prevent the exclusion of social and economic rights from these processes. This can be done, for example, by explicitly incorporating certain language in invitations to submit proposals for funding or in offers of assistance. This language should clearly state that economic and social rights violations are included in the “human rights violations” for which accountability and prevention measures are being designed.

Transitional justice as a measure of inclusion and sustainable development

Third and perhaps most importantly in terms of sustainability, Germany should become a voice for exploring and implementing remedies for economic and social rights violations as guarantees of non-reccurrence. It should do this not only in conventional international human rights accountability settings (such as the UN Human Rights Council (UNHRC) or the Universal Periodic Review (UPR) process) but also where the recurrence of economic and social rights violations might be a consequence of economic and development programming. In the UNHRC and within the UPR process, Germany can introduce questions and recommendations around economic and social rights violations whenever transitional justice commitments made by states under review are discussed.

Furthermore, Germany could ask for social and economic rights impact studies in programs that financial institutions such as the World Bank and the International Monetary Fund carry out in post-conflict and post-dictatorship countries. In ongoing discussions regarding the Sustainable Development Goals, Germany should advocate for explicit references to economic and social rights. For example, Germany could interpret SDG 16 – “promoting peaceful and inclusive societies for sustainable development (and) access to justice” – as a call for transitional justice processes that prevent economic and social rights violations as a measure of inclusion and sustainable development.

English Menschenrechte Transitional Justice

Ruben Carranza

Ruben Carranza is the director of the Reparative Justice Program at the International Center for Transitional Justice (ICTJ).