Abstract
In 2012, more and more voices are calling on policymakers to encompass economic, social, and cultural rights—the economic violence that underlies many conflicts—under the banner of transitional justice. The critique of transitional justice as too “top-down,” too elite-driven, and too responsive to donor rather than local priorities merged with a sense that the emphasis on civil and political rights in transitional justice reflects the privilege those rights in Western rights discourse. While there is considerable support for the idea that transitional justice generally needs to grapple more centrally with economic, social, and cultural rights, it is not clear how reparations fit into that picture. This chapter briefly describes reparations programs and their potential contributions to protecting and ensuring economic, social, and cultural rights, with a focus on administrative reparations programs in the transitional context. This is followed by a look at how existing administrative reparations programs have dealt with rights like education, health, and housing in the context of “integral reparations” for other kinds of violations. Then, the chapter turns to efforts to deal directly with violations of economic, social, and cultural rights, especially arising from forced displacement and dispossession of land and property, using South Africa and Colombia as examples. Finally, it considers how reparations programs could more effectively deal with violations of socioeconomic rights, especially where these stem from systematic discrimination and exclusion.
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Notes
- 1.
There were some early advocates for a broader view of transitional justice to include economic, social, and cultural (ESC) rights. A seminal work on the need for distributive alongside reparatory justice was Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity Press, 2002). Another early effort to link impunity and reparation for ESC rights, albeit not explicitly in a transitional justice context, was United Nations Sub-Commission on the Promotion and Protection of Human Rights, Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations (Economic, Social and Cultural rights), UN. Doc. E/CN.4/Sub.2/1997/8, 1997.
- 2.
See chapter by Dustin Sharp in this volume for a discussion of how recent truth commissions, including those of Liberia, Sierra Leone, East Timor, and elsewhere, have dealt with ESC rights violations.
- 3.
Evelyne Schmid, “War Crimes Related to Violations of Economic, Social and Cultural Rights,” Heidelberg Journal of International Law 71, no. 3 (2011): 540.
- 4.
United Nations General Assembly, “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” UN Doc. A/RES60/147, December 16, 2005.
- 5.
See generally Ruben Carranza, “Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?” International Journal of Transitional Justice 2, no. 3 (2008): 310–330.
- 6.
Ismael Muvingi, “Sitting on Powder Kegs: Socioeconomic Rights in Transitional Societies,” International Journal of Transitional Justice 3, no. 2 (2009): 180.
- 7.
This is the argument President Mbeki of South Africa made against reparations to victims of apartheid-era rights violations. See also Zinaida Miller, “Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice,” International Journal of Transitional Justice 2, no. 3 (2008): 285 (Stating “only certain victims became fully part of the narrative of reconciliation. The suffering of many living victims is denied recognition or relegated to a lesser level of significance because their suffering is seen as politically problematic or ambiguous”).
- 8.
For an account of the evolution of Peru’s reparations program in light of these concerns, see Jemima Garcia-Godos, “Victims Participation in the Peruvian Truth Commission and the Challenge of Historical Interpretation,” International Journal of Transitional Justice 2, no. 1 (2008): 63–82.
- 9.
The European Convention on Human Rights and Fundamental Freedoms and American Convention on Human Rights do not explicitly include ESC rights per se, although they often deal with such rights in terms of property rights, provisions against discrimination or on due process. A separate European Social Charter in Europe and Protocol on ESC Rights (Protocol of San Salvador) in the Americas do contain such rights, but only some of those rights are justiciable through the regional human rights courts. The African Charter on Human and Peoples’ Rights does include some ESC rights. In addition, the International Committee on ESC Rights, the expert committee that monitors implementation of the International Covenant on ESC Rights will be able to hear individual communications once the Optional Protocol allowing such communications comes into force.
- 10.
Examples of such “soft law” sources include the various “general comments” published by the United Nations Committee on Economic, Social, and Cultural Rights; “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” a set of principles regarding the nature and scope of violations of ESC rights developed by a group of civil society and human rights experts, adopted on January 22–26, 1997; and “The Right to Food Guidelines” developed by the Food and Agricultural Organization of the United Nations in 2006.
- 11.
See the South African Constitutional Court’s cases on right to housing (Government of the RSA v Grootboom 2000 (1) SA 46 (CC)) and health (Minister of Health v Treatment Action Campaign 2002 (5) SA 703 (CC)); see also the Colombian Constitutional Court’s cases on the rights of the internally displaced, discussed below.
- 12.
International Covenant on Economic, Social and Cultural Rights, entered into force January 3, 1976, 993 U.N.T.S. 3, art. 2.1.
- 13.
Ibid., art. 2.2.
- 14.
United Nations General Assembly, “Basic Principles and Guidelines on the Right to a Remedy.” For a thorough examination of the UN Basic Principles, and other sources of the right to reparation in international law, see Dinah Shelton, “The United Nations Principles and Guidelines on Reparations: Context and Contents,” in Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, eds. Koen De Feyter et al., Stephan (Holmes Beach, FL: Intersentia, 2006), 11–33.
- 15.
United Nations General Assembly, “Basic Principles and Guidelines on the Right to a Remedy,” art. 11.
- 16.
Ibid., art. 15.
- 17.
Ibid., arts. 19–23.
- 18.
Naomi Roht-Arriaza, “Reparations Decisions and Dilemmas,” Hastings International and Comparative Law Review 27 (2004): 160–165.
- 19.
This concept was first introduced in the Loayza Tamayo case (Loayza Tamayo case, Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C), No. 42 (November 27, 1998)) and developed in subsequent cases. See generally Laurence Burgorgue-Larsen and Amaya Úbeda de Torres, The Inter-American Court of Human Rights: Case-Law and Commentary, trans. Rosalind Greenstein (Oxford: Oxford University Press, 2011), 229–230.
- 20.
Liselotte Viaene, “Voices From the Shadows: The Role of Cultural Contexts in Transitional Justice Processes” (Doct. law diss., Universiteit Gent, 2010); Paul Gready, The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond (London: Routledge, 2011).
- 21.
The creation of Peru’s registry, for example, has taken roughly seven years, and as of this writing, individual payments are still pending.
- 22.
Marcie Mersky and Naomi Roht-Arriaza, “Guatemala,” in Victims Unsilenced: The Inter-American Human Rights System and Transitional Justice in Latin America (Washington, DC: Due Process of Law Foundation, 2007), 7–32. Elizabeth Lira notes a similar result in the Mapuche areas of Chile, where “in very poor communities the economic reparations distorted family relations of solidarity and negatively affected family and community networks.” Elizabeth Lira, “The Reparations Policy for Human Rights Violations in Chile,” in The Handbook of Reparations, ed. Pablo De Greiff (Oxford: Oxford University Press, 2006), 63.
- 23.
Viaene, Voices From the Shadows; Ruth Rubio Marin, The Gender of Reparations (Cambridge: Cambridge University Press, 2009). See also Mersky and Roht-Arriaza, “Guatemala.”
- 24.
Lira, “The Reparations Policy for Human Rights Violations in Chile,” 68.
- 25.
Mohamad Suma and Cristián Correa, Report and Proposals for the Implementation of Reparations in Sierra Leone (New York: International Center for Transitional Justice, December 2009).
- 26.
See discussion of the Trust’s Community Investment Program at Business Trust, “Community Investment,” http://www.btrust.org.za/com_investment.html (accessed October 4, 2012).
- 27.
The International Center for Transitional Justice (ICTJ) and Asociación Pro Derechos Humanos (APRODEH), Perú: ¿Cuánto se ha Reparado en Nuestras Comunidades: Avances, Percepciones y Recomendaciones sobre Reparaciones Colectivas en Peru 2007–2011 (2011), http://ictj.org/sites/default/files/ICTJ-Peru-Reparaciones-2011-Espa%C3%B1ol_OnlinePDF.pdf..
- 28.
Ibid.
- 29.
Ibid. According to this report, as of 2011 projects were underway or completed in almost 1500 localities, with an overall budget of US $52 million. Ibid., 15.
- 30.
Ibid., 36–37.
- 31.
There are also cases of land dispossession and restitution that do not fit easily within a framework of transitional justice. For example, a number of countries, including Canada, New Zealand, Australia, and a number of Latin American states, have restituted land to indigenous peoples that had been taken away by colonial administrations. See, e.g., Frederico Lenzerini, ed., Reparations for Indigenous Peoples (Oxford: Oxford University Press, 2008). A line of jurisprudence from UN and regional human rights commissions and courts has established the rights of indigenous people to their lands and to control what happens on those lands. Examples include: Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Case 276/2003, African Commission on Human and Peoples Rights (2009) (recommending restitution and titling of communal lands); Chief Bernard Ominayak and Lubicon Lake Band v. Canada, CCPR/C/38/D/167/1984, UN Human Rights Committee (HRC) (1990) (right to livelihood of indigenous groups is part of minority rights); Case of the Yakye Axa Indigenous Community v. Paraguay, Case 12.313, Inter-American Court of Human Rights (2005) (demarcation and titling of indigenous lands previously dispossessed).
- 32.
Roger Duthie, “Transitional Justice and Displacement,” International Journal of Transitional Justice 5, no. 2 (2011): 245–246.
- 33.
Ibid., 260.
- 34.
Mark Landler, “German company pays Jewish family for Nazi-era confiscation,” TheNew York Times, March 30, 2007.
- 35.
See, e.g., Anna Gelpern, “The Laws and Politics of Reprivatization in East-Central Europe: A Comparison,” University of Pennsylvania Journal of International Business Law 14, no. 3 (1993): 315–372; Frances Foster, “Restitution of Expropriated Property: Post-Soviet Lessons for Cuba,” Columbia Journal of Transnational Law 34, no. 3 (1996): 621–656. Regarding indigenous peoples, see generally, Lenzerini, Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford: Oxford University Press, 2008).
- 36.
Commission for Real Property Claims of Displaced Persons and Refugees, “Dayton Agreement, Annex 7,” http://www.unhcr.org/3c3c42794_OnlinePDF.pdf. See generally Lynn Hastings, “Implementation of the Property Legislation in Bosnia Herzegovina,” Stanford Journal of International Law 37, no. 2 (2001): 221–254.
- 37.
Duthie, “Transitional Justice and Displacement”; Rhodri Williams, “Post-Conflict Property Restitution and Refugee Return in Bosnia and Herzegovina: Implications for International Standard-Setting and Practice,” New York University Journal of International Law and Politics 37, no. 3 (2005): 489.
- 38.
Ruth Hall, “Reconciling the Past, Present, and Future: The Parameters and Practices of Land Restitution in South Africa,” in Land, Memory, Reconstruction, and Justice: Perspectives on Land Claims in South Africa, eds. Cherryl Walker et al. (Athens, OH: Ohio University Press, 2010), 18–19.
- 39.
South Africa Restitution of Lands Act of 1994, sec. 2(1), as amended by Land Restitution and Reform Laws Amendment Act 63 of 1997.
- 40.
Hall, “Reconciling the Past, Present, and Future,” 30.
- 41.
Hanri Mostert, “Change Through Jurisprudence: The Role of the Courts in Broadening the Scope of Restitution,” in Land, Memory, Reconstruction, and Justice: Perspectives on Land Claims in South Africa, eds. Cherryl Walker et al. (Athens, OH: Ohio University Press, 2010), 64–68.
- 42.
Ibid., 65–74.
- 43.
Hall, “Reconciling the Past, Present, and Future,” 25.
- 44.
Anna Bohlin, “Choosing Cash over Land in Kalk Bay and Knysna,” in Land, Memory, Reconstruction, and Justice: Perspectives on Land Claims in South Africa, eds. Cherryl Walker et al. (Athens, OH: Ohio University Press, 2010), 116–130.
- 45.
Anna Bohlin, “A Price on the Past: Cash as Compensation in South African Land Restitution,” Canadian Journal of African Studies 38, no. 3 (2004): 672–687.
- 46.
Bill Derman, Edward Lahiff, and Espen Sjaastad, “Strategic Questions About Strategic Partners,” in Land, Memory, Reconstruction, and Justice: Perspectives on Land Claims in South Africa, eds. Cherryl Walker et al. (Athens, OH: Ohio University Press, 2010), 306–324.
- 47.
Robin Kirk, More Terrible Than Death: Drugs, Violence, and America's War in Colombia (Jackson, TN: Public Affairs, 2004).
- 48.
United Nations High Commissioner for Refugees, “2012 UNHCR Country Operations Profile – Colombia,” http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e492ad6&submit=GO (accessed October 5, 2012).
- 49.
Presidential Decree 3391 of 2006, September 29, 2006, art. 16.
- 50.
As of this writing, the law is being revised.
- 51.
Law 1448 of 2011 (“Victims and Land Restitution Law”), June 2011, art. 3. Under the statute, the definition of family includes the spouse, permanent companion, or member of a same-sex couple as well as immediate relatives. Indigenous and Afro-Colombian populations are not covered by the law due to the longer time frame necessary to carry out proper consultations with communities and their authorities to decide on appropriate reparations measures.
- 52.
Ibid., art. 4.
- 53.
Ibid., art. 13.
- 54.
Ibid., art. 25.
- 55.
Ibid., art. 46.
- 56.
Ibid., art. 72.
- 57.
Ibid., art. 74.
- 58.
Ibid., art. 78.
- 59.
Ibid., art. 77.
- 60.
Ibid., art. 207.
- 61.
In this, there is a parallel to Law 975, where part of the reason there were so few convictions is that the investigative personnel needed to confirm the claims of demobilizing paramilitaries was not put in place. Maria José Guembe and Helena Olea, “No Justice, No Peace: Discussion of a Legal Framework Regarding the Demobilization of Non-State Armed Groups,” in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, eds. Naomi Roht-Arriaza and Javier Mariezcurrena (Cambridge: Cambridge University Press, 2006), 120–142.
- 62.
Human Rights Watch, “Columbia,” in World Report 2012 (New York: Human Rights Watch, 2012).
- 63.
“Victims and Land Restitution Law,” art. 28, 8.
- 64.
Several truth commissions, including El Salvador and Sierra Leone, have recommended that those who armed and benefited from the conflict should contribute to repairing the damage, but to date those targeted by such recommendations have not responded. One exception is the contribution of Riggs Bank of Washington, DC to a fund for victims of Pinochet in Chile, exacted as part of a plea bargain with Spanish prosecutors over charges of money laundering and concealment of Pinochet’s offshore accounts. Naomi Roht-Arriaza, “The Multiple Prosecutions of Augusto Pinochet,” in Prosecuting Heads of State, eds. Ellen Lutz and Caitlin Reiger (Cambridge: Cambridge University Press, 2009).
- 65.
The case was decided on September 4, 2012. The Court found the government responsible for violations of the American Convention including Article 22 referring to freedom of movement and residence, as a result, in part, of the forced displacement of the population during the internal armed conflict and the impossibility of returning to their ancestral lands due to construction of the dam and reservoir. Case of the Rio Negro Massacres v. Guatemala, September 4, 2012, Series C, No. 250, 172–182.
- 66.
Barbara Johnston/Center for Political Ecology, “Reparations and the Right to Remedy,” World Commission on Dams Briefing Paper (2000).
- 67.
For a discussion of IFI immunities, see Steven Herz, “Rethinking International Financial Institution Immunities,” in International Financial Institutions and International Law, eds. Daniel Bradlow and David Hunter (Alphen aan den Rijn: Kluwer, 2010), 137–165.
- 68.
According to the Human Rights Office of the Presidency, the problem has been a combination of bureaucratic confusion about payment mechanisms and uncertainties about what exactly was paid out in the original, incomplete settlement with the electricity company. At one point, the government tried to get legislation to fund the settlement, but it was defeated. The post-agreement talks broke down, with each side blaming the other for further delays. Note from the Presidential Commission of Human Rights (COPREDEH) to the UN Special Rapporteur on Indigenous Peoples explaining delays in settlement, 2011 (on file with author).
- 69.
Korir Sing’Oei, “The Endorois' Legal Case and Its Impacts on State and Corporate Conduct in Africa,” http://www.natureandpoverty.net/find/?eID=dam_frontend_push&docID=1285 (accessed October 6, 2012).
- 70.
Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya. A full discussion of the implications of the case is beyond the scope of this chapter. See Sing’Oei, “The Endorois’ Legal Case.”
- 71.
Tensions are again rising. See, e.g., Joseph Akwiri and Drazen Jorgic, “Rival Kenyan Tribes Clash Again over Land,” Reuters, September 11, 2012.
- 72.
Brandon Hamber, “Narrowing the Micro and Macro: A Psychological Perspective on Reparations in Societies in Transition,” in The Handbook of Reparations, ed. Pablo De Greiff (Oxford: Oxford University Press, 2006), 580.
- 73.
Viaene, Voices From the Shadows.
- 74.
The International Center for Transitional Justice (ICTJ) and Asociación Pro Derechos Humanos (APRODEH), Perú: ¿Cuánto se ha Reparado en Nuestras Comunidades?
- 75.
Ruth Rubio, What Happened to the Women?: Gender and Reparations for Human Rights Violations (Brooklyn, NY: Social Science Research Council, 2006).
- 76.
These categories are obviously fluid: The same individual may fall into more than one category by, e.g., rescuing some people while attacking others; within families there are often representatives of all of them. It may be impossible to benefit only the “right” victims; Peru’s Comprehensive Reparation Plan (PIR), e.g., excludes members of subversive groups, but this provision has raised a host of criticisms that the exclusion is discriminatory and sweeps much too broadly.
- 77.
This phenomenon takes different forms in different cultures. It is (derogatorily) talked about as the ability to act as a godfather, big man, or mover and shaker, but the same impulse motivates, at least in part, large wedding feasts, and hefty donations to the ballet or new hospital wing.
- 78.
Chris Colvin, “Overview of the Reparations Program in South Africa,” in The Handbook of Reparations, ed. Pablo De Greiff (Oxford: Oxford University Press, 2006), 209.
- 79.
Naomi Roht-Arriaza and Katharine Orlovsky, “A Complementary Relationship: Reparations and Development,” in Transitional Justice and Development: Making Connections, eds. Pablo De Greiff and Roger Duthie (Brooklyn, NY: Social Science Research Council, 2009), 213.
- 80.
United Nations Human Rights Council, “Human Rights and Transnational Corporations and Other Business Enterprises,” Un. Doc. A/HRC/17/L.17, June 10, 2011. For more on the so-called Ruggie Principles, which are beyond the scope of this article, see generally Fletcher Forum, “Business and Human Rights: Together at Last? A Conversation with John Ruggie,” The Fletcher Forum of World Affairs Journal 35 (2011): 117–122.
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Roht-Arriaza, N. (2014). Reparations and Economic, Social, and Cultural Rights. In: Sharp, D. (eds) Justice and Economic Violence in Transition. Springer Series in Transitional Justice, vol 5. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-8172-0_5
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