Abstract
Historically, if truth commissions have placed mass atrocities and physical violence in the transitional justice spotlight, issues of equally devastating economic and social justices have received comparatively little attention. To the extent that truth commissions have dealt with economic violence, it has largely been treated as context, useful in helping to understand why physical violence took place, but little more. The marginalization of the economic within the transitional justice agenda serves to distort our understanding of conflict and the policies thought to be necessary in the wake of conflict. In contrast to these patterns, an increasing number of truth commissions, many of them African, have taken steps to shift economic violence into the foreground of their work. In some cases, they have even identified it as a “root cause” of conflict and included among their recommendations measures intended to address the underpinnings of economic violence. This chapter explores the pioneering “jurisprudence” on economic violence of five African truth commissions, Chad, Ghana, Sierra Leone, Liberia, and Kenya, plus East Timor, using the case studies as a prism to explore some of the practical, legal, and policy dilemmas raised by the greater inclusion of economic violence in the transitional justice agenda. It argues that while African truth commissions have made great strides in moving economic violence into the foreground, they rarely frame the issues in question as human rights issues, even where claims of violations of economic and social rights would be strong. This represents a lost opportunity for addressing poverty and other issues of economic violence in the post-conflict context.
A few portions of this chapter, particularly the case study on Sierra Leone, are drawn from an article first published in the Harvard Human Rights Journal. See Dustin Sharp, “Interrogating the Peripheries; The Preoccupations of Fourth Generation Transitional Justice,” Harvard Human Rights Journal 26 (2013).149–178.
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Notes
- 1.
James Cavallaro and Sebastián Albuja, “The Lost Agenda: Economic Crimes and Truth Commissions in Latin America and Beyond,” in Transitional Justice from Below, Grassroots Activism and the Struggle for Change, ed. Kieran McEvoy and Lorna McGregor (Oxford and Portland, Oregon: Hart Publishing, 2008), 122.
- 2.
See Zinaida Miller, “Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice,” International Journal of Transitional Justice 2, no. 3 (2008): 275–276.
- 3.
Ibid., 266–268.
- 4.
Beyond the International Covenant on Economic, Social, and Cultural Rights, economic, social, and cultural rights have the status of binding law in a number of international human rights treaties. Examples include the Convention on the Elimination of All Forms of Discrimination against Women; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the Convention on the Rights of Persons with Disabilities; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights; the European Social Charter; and the African Charter on Human and Peoples Rights.
- 5.
See generally, Neil Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Volume I. General Considerations (Washington: United States Institute of Peace, 1995).
- 6.
See Chandra Sriram, Olga Martin-Ortega, Johanna Herman, “Evaluating and Comparing Strategies of Peacebuilding and Transitional Justice,” JAD-PbP Working Paper Series No 1. (May 2009), 13 (discussing increasing linkages between transitional justice and a broader set of peacebuilding activities).
- 7.
United Nations Secretary General, “The Rule of Law and Transitional Justice in Post-conflict Societies,” UN Doc. S/2004/616 (August 23, 2004), para. 8.
- 8.
Paige Arthur, “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice,” Human Rights Quarterly31 (2009): 326.
- 9.
Nunca Más, Report of the Argentine National Commission on the Disappeared (New York: Farar, Strauss & Giroux, 1986).
- 10.
While Uganda and others can arguably lay the claim to having held the first truth commission, Argentina’s commission is of unquestionably higher influence in the spread of truth commissions around the world and was the first to publish a report that became a best seller.
- 11.
Prisilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2011), 11–12.
- 12.
Ibid.
- 13.
See, for example, Alexander Boraine, “Truth and Reconciliation in South Africa,” in Truth v. Justice, eds. Robert Rotberg and Dennis Thompson (Princeton: Princeton University Press, 2000), 141–157.
- 14.
Hayner, Unspeakable Truths, 5.
- 15.
For a critical take on the work of the Liberian truth commission, see, e.g., Jonny Steinberg, “Liberia’s Experiment with Transitional Justice,” African Affairs 109 (2009): 136.
- 16.
Reed Brody, “Justice: The First Casualty of Truth?,” The Nation, April 30, 2001, 25.
- 17.
David Mendeloff, “Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?,” International Studies Review 6 (2004): 356.
- 18.
Rosalind Shaw, “Rethinking Truth and Reconciliation Commissions; Lessons from Sierra Leone” (United States Institute for Peace Special Report 130, 2005); see also Tim Kelsall, “Truth, Lies, Ritual: Preliminary Reflections on the Truth and Reconciliation Commission in Sierra Leone,” Human Rights Quarterly 27 (2005): 361.
- 19.
Pablo De Greiff and Roger Duthie, “Repairing the Past: Reparations for Victims of Human Rights Violations,” in The Handbook on Reparations, ed. Pablo de Greiff (Oxford: Oxford University Press, 2006), 8.
- 20.
Cavallaro and Albuja, “The Lost Agenda,” 128.
- 21.
Ibid., 125.
- 22.
See generally, Arthur, “How ‘Transitions’ Reshaped Human Rights.”
- 23.
Cavallaro and Albuja, “The Lost Agenda,” 125.
- 24.
Boraine, “Truth and Reconciliation in South Africa,” 142–143.
- 25.
Louise Arbour, “Economic and Social Justice for Societies in Transition,” International Law and Politics 40 (2007), 5.
- 26.
World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (July 12, 1993); United Nations Millennium Declaration, G.A. Res. 55/2, UN Doc A/RES/55/2 (Sept. 13, 2000).
- 27.
Kenneth Roth, “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly (2004): 63; Curt Goering, “Amnesty International and Economic, Social, and Cultural Rights,” in Ethics in Action; The Ethical Challenges of International Human Rights Nongovernmental Organizations, eds. Daniel Bell Jean-Marc Coicaud (Cambridge: Cambridge University Press, 2006), 204 (tracing the history of Human Rights Watch and Amnesty International’s early ambivalence toward economic and social rights).
- 28.
Cavallaro and Albuja, “The Lost Agenda,” 129.
- 29.
Arthur, “How ‘Transitions’ Reshaped Human Rights,” 359.
- 30.
Miriam Aukerman, “Extraordinary Evil, Ordinary Crimes: A Framework for Understanding Transitional Justice,” Harvard Human Rights Journal 15 (2002): 91–97 (calling for a goal- and culture-specific response to mass atrocities).
- 31.
Alexander Boraine, “Transitional Justice: A Holistic Interpretation,” Journal of International Affairs 60 (2006), 18; Kieran McEvoy, “Beyond Legalism: Towards a Thicker Understanding of Transitional Justice,” Journal of Law and Society 34 (2007): 417.
- 32.
See Evelyne Schmid, “War Crimes Related to Violations of Economic, Social and Cultural Rights,” Heidelberg Journal of International Law 71, no. 3 (2011): 3, 5, 9–17.
- 33.
Commission d'Enquête du Ministère Chadien de la Justice sur Les Crimes et Détournements de l’ex-Président Habré et de ses Complices.
- 34.
Chad currently ranks 175 of 182 on the United Nations Human Development Index, 173 of 180 on Transparency International’s Corruption Perception Index, and 46 of 48 on the Mo Ibrahim Index of African Governance. Life expectancy is 47.7 years, and 80 % of the population lives on less than one US dollar a day. For a discussion of the Chad–Cameroon oil pipeline, see Dustin Sharp, “Requiem for a Pipedream; Oil, the World Bank, and the Need for Human Rights Assessments,” Emory International Law Review 25 (2011): 379.
- 35.
Sharp, “Requiem for a Pipedream,” 387.
- 36.
Decree Creating the Commission of Inquiry into the Crimes and Misappropriations Committed by ex-President Habré, His Accomplices and/or Accessories, Decree No. 014/P.CE/CJ/90 (December 29, 1990), Article 2.
- 37.
Les Crimes et Détournements de l’ex-Président Habré et de ses Complices (Chadian TRC Report) (Paris: L’Harmattan, 1993), 9.
- 38.
Ibid.,21.
- 39.
Ibid., 150.
- 40.
Priscilla Hayner, “Fifteen Truth Commissions—1974 to 1994: A Comparative Study,” Human Rights Quarterly 16 (1994): 625.
- 41.
Chadian TRC Report, 18.
- 42.
Ibid., 97.
- 43.
Hayner, “Fifteen Truth Commissions,” 625.
- 44.
While the government of Chad has done little to follow these recommendations, a coalition of Habré’s victims and human rights NGOs have been attempting to prosecute Habré for violations of the Convention Against Torture since 1999. For a look at the genesis of these efforts, see Dustin Sharp, “Prosecutions, Development, and Justice; The Trial of Hissein Habré,” Harvard Human Rights Journal 16 (2003). For a review of more recent developments in the Habré case, see Laura Bingham, “Trying for a Just Result? The Hissène Habré Affair and Judicial Independence in Senegal,” Temple International and Comparative Law Journal 23 (2009): 77.
- 45.
Chadian TRC Report, 27–28.
- 46.
Ibid., 97.
- 47.
Robert Ameh, “Doing Justice after Conflict: The Case for Ghana’s National Reconciliation Commission,” Canadian Journal of Law and Society 21 (2006): 96.
- 48.
Nahla Valji, “Ghana’s National Reconciliation Commission: A Comparative Assessment,” International Center for Transitional Justice, Occasional Paper Series (September 2006).
- 49.
Ibid., forward.
- 50.
The commission understood seizure of property to include “confiscation of factories, houses, vehicles, goods, cash crops and food crops, and various sums of money.” National Reconciliation Commission Report (Ghana NRC Report) (2004), Vol. I, 92.
- 51.
Ibid., 10–14.
- 52.
Ibid., 96.
- 53.
Ghana NRC Report, Vol. II, 42.
- 54.
Ghana NRC Report, Vol. I, 76.
- 55.
Valji, “A Comparative Assessment,” 10.
- 56.
John Bellows and Miguel Edward, “War and Institutions: New Evidence from Sierra Leone,” The American Economic Review 96 (2006): 394.
- 57.
Statute of the Special Court for Sierra Leone, Art. 1.
- 58.
Witness to Truth, Report of the Sierra Leone Truth and Reconciliation Commission (2004), Vol. I, 37–38.
- 59.
Witness to Truth, Vol. II, 27.
- 60.
Ibid., 35.
- 61.
Ibid., 99–105.
- 62.
Witness to Truth, Vol. I, 12.
- 63.
Republic of Sierra Leone, The Truth and Reconciliation Act (2000), Section 17.
- 64.
Specifically, the Domestic Violence Act, the Registration of Customary Marriage and Divorce Act, and the Devolution of Estates Act.
- 65.
Lisa Laplante, “Transitional Justice and peacebuilding: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework,” International Journal of Transitional Justice 2 (2008): 337–350.
- 66.
Truth and Reconciliation Commission, Consolidated Final Report (2009) (Liberia TRC Report), Vol. I, 44.
- 67.
Republic of Liberia, An Act to Establish the Truth and Reconciliation Commission for Liberia (Liberian TRC Act), May 12, 2005, preamble.
- 68.
Ibid., Article IV, Section 4(a).
- 69.
Lansana Gberie, “Truth and Justice on Trial in Liberia,” African Affairs 107 (2008): 428.
- 70.
Steinberg, “Liberia’s Experiment,” 136.
- 71.
Ibid.
- 72.
Paul James-Allen, Aaron Weah, and Lizzie Goodfriend, “Beyond the Truth and Reconciliation Commission: Transitional Justice Options in Liberia,” International Center for Transitional Justice (May 2010), 3.
- 73.
Liberia TRC Report, Vol. II, 16–17.
- 74.
Godfrey Musila, “Options for Transitional Justice in Kenya: Autonomy and the Challenge of External Prescriptions,” International Journal of Transitional Justice 3 (2009): 447.
- 75.
See generally, Makau Mutua, chairperson, “Republic of Kenya, Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission,” Buffalo Human Rights Law Review 10 (2004): 15.
- 76.
Republic of Kenya, The Truth, Justice and Reconciliation Act, 2008 (Kenyan TRC Act).
- 77.
The commission began its work in August 2009, yet as a result of repeated delays and extensions, its final report had yet to be issued as of this writing in January 2013.
- 78.
The Truth, Justice and Reconciliation Act, 2008.
- 79.
Godfrey Musila, “Options for Transitional Justice in Kenya: Autonomy and the Challenge of External Prescriptions,” International Journal of Transitional Justice 3 (2009): 446.
- 80.
Musila, “Options for Transitional Justice in Kenya,” 460.
- 81.
Human Rights Watch, “Kenya: Proposed Truth Commission Bill Seriously Flawed,” Press Release (March 13, 2008).
- 82.
Mutua, “Report of the Task Force,” 41.
- 83.
Ibid., 42.
- 84.
Musila, “Options for Transitional Justice in Kenya,” 453.
- 85.
Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste, CAVR.
- 86.
Chega!, The Report of the Commission for Reception, Truth and Reconciliation in Timor Leste (CAVR), Final Report (2005), part 7.9, 3.
- 87.
Ibid., part 11, 10–12.
- 88.
Ibid., part 11, 40–41.
- 89.
For background on “the Tensions,” see generally James Cockayne, “Operation Helpem Fren: Solomon Islands, Transitional Justice and the Silence of Contemporary Legal Pathologies on Questions of Distributive Justice,” NYU School of Law Center for Human Rights and Global Justice, Working Paper Series, No. 3 (2004).
- 90.
The Solomon Islands, Truth and Reconciliation Act, 2008 (Solomon Islands TRC Act), section 5.
- 91.
Ibid.
- 92.
Ibid.
- 93.
While the commission’s final report was given to the Prime Minister in the early 2012, as of this writing, it is unclear when it will be made widely publically available.
- 94.
Cavallaro and Albuja, “The Lost Agenda,” 138.
- 95.
United Nations Secretary General, “The Rule of Law and Transitional Justice in Post-Conflict Societies,” UN Doc. S/2011/634 (October 12, 2011), para. 7.
- 96.
In its final report, the East Timorese commission acknowledged its heavy reliance on secondary sources as one of the limitations of its analysis. Chega!, part 7.9, 5.
- 97.
See Chris Albin-Lackey, “Corruption, Human Rights, and Activism: Useful Connections and their Limits,” in this volume.
- 98.
See generally Roth, “Defending Economic, Social and Cultural Rights” (explaining the particular methodological challenges associated with trying to apply a “naming and shaming” documentation strategy to violations of economic and social rights); Goering, “Amnesty International and Economic, Social, and Cultural Rights” (tracing the history of Amnesty International’s ambivalence toward economic and social rights).
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Sharp, D.N. (2014). Economic Violence in the Practice of African Truth Commissions and Beyond. 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_4
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