Challenging the Transitional Justice Paradigm: Addressing ESRs Violations in Transitional Justice Processes

AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 / 655-677 655 iSBn: 0212-0747 • Doi: 10.15581/010.35.655-677 challenging the transitional justice paradigm: addressing esrs violations in transitional justice processes Desafiando el paradigma de la justicia transicional: abordando las violaciones de derechos económicos y sociales en los procesos de justicia de transición Laura García martín investigadora Postdoctoral y Profesora asistente de derecho internacional público universidad de sevilla [email protected] reciBido el 25 de julio de 2018/ aceptado el 16 de octuBre d 2018 Abstract: the economic and social dimension of transitional justice has been largely ignored in favour of traditional emphasis on violations of civil and political rights. While early transitional justice processes mainly focused on criminal prosecutions for bodily integrity violations, socioeconomic issues, including economica and social rights (herein esrs) violations, were seen just as part of background. However, scholarship and practitioners are increasingly calling to include esrs violations in transitional justice processes. indeed, economic and social conditions are frequently linked to human rights abuses, often constituting a cause, means or consequence of conflict and authoritarianism. including the assessment of esrs violations as an issue for transitional justice might serve the purpose of establishing a more comprehensive understanding of the root causes of past human rights violations as well as to facilitate the pathway to achieve a sustainable peace. Keywords: transitional justice, human rights, economic and social rights, development, peacebuilding. Resumen: La dimensión económica y social de la justicia de transición ha estado tradicionalmente relegada a un segundo plano, tomando prioridad en este sentido las violaciones de derechos civiles y políticos. Mientras que los primeros procesos de justicia de transición se enfocaban en juicios penales por crímenes relacionados con la integridad física personal, las cuestiones de carácter socioeconómico, así como las violaciones de derechos económicos y sociales, se consideraba simplemente como parte del contexto en el que aquellos crímenes tenían lugar. no obstante, tan- to la academia como los especialistas sobre el terreno abogan hoy en día para que se incluyan las violaciones de derechos económicos y sociales en los procesos de justicia de transición. de hecho, las violaciones de derechos humanos están frecuentamente ligadas a unas circunstancias socioeconómicas negativas específicas, bien constituyendo estas la causa, medio o consecuencia del conflicto. Por lo tanto, incluir apropiadamente una evaluación de las violaciones de derechos económicos y sociales en los procesos de justicia de transicion podría contribuir al establecimien- to de las causas subyacentes de las violaciones de derechos humanos que tuvieron lugar en el pasado, así como facilitaría el camino para conseguir una paz duradera. Palabras clave: justicia de transición, derechos humanos, derechos económicos y sociales, desarrollo, construcción de paz. Sumario: i. introduction. ii. traditionaL invisiBiLity oF esrs in transitionaL justice Processes. iii. addressinG esrs in transitionaL justice Processes. iii.1. truth. iii.2. justice.iii.3.reparations. iii.4. institutional reform. iv. concLudinG tHouGHts. List oF reFerences Laura García Martín 656 AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 i. introduction transitional justice programmes have been traditionally focused on civil and political rights (CPRs) as well as bodily integrity violations, largely ignoring therefore those related to economic and social rights (ESRs). This last set of rights and socioeconomic elements of conflict or authoritarianism have been generally relegated to the background issues. 1 Socioeconomic grievances however often appear as relevant aspects to the past violent dynamics, so considering them can potentially provide a deeper understanding of the root causes of conflict, as well as helping to reduce the chances of recurrence in the future. 2 indeed, many conflicts and dictatorial regimes are often fueled by socioeconomic injustices, and frequently involve significant ESRs violations. Yet riots in Tunisia and Egypt that ultimately led to large-scale violence were based on expressed socioeconomic concerns, such as unemployment and corruption. 3 Likewise, pursuing neo-liberal economic policies by most of the military regimes in Latin America was found to be closely linked to violations of ESRs, particularly regarding trade unionists and leftist activists who became the main target of repression. notwithstanding these considerations, many commentators advocate caution about including ESRs within transitional justice strategies, arguing that addressing ESRs in such contexts could jeopardise the whole transitional justice programme, being too broad and ambitious. Similarly, some authors 1 See i.e. sharp, D.n, «Addressing Economic violence in Times of Transition: Toward a Positive-Peace Paradigm for Transitional Justice», Fordham International Law Journal, vol. 35 (2012); See also, roth-arriaza, n., «Why was the Economic Dimension Missing for So Long in Transitional Justice? An Exploratory Essay», in H. verbitsky and J. P. Bohoslavsky (ed.), The Economic Accomplices to the Argentine Dictatorship. Outstanding Debts, Cambridge university Press, 2015, pp. 19-28; caLvet martínez, E., «La exigibilidad de los derechos económicos, sociales y culturales en situaciones de post-conflicto y en procesos de justicia transicional», in J. Bonet Pérez and R. A. Alija Fernández (ed.), La exigibilidad de los derechos económicos, sociales y culturales en la Sociedad Internacional del siglo XXI: una aproximación jurídica desde el Derecho internacional, Marcial Pons, 2016, p. 199. 2 szoke-Burke, S., «not only «Context’: Why Transitional Justice Programs Can no Longer ignore violations of Economic and Social Rights», Texas International Law Journal, vol. 50, no. 3, 2015, pp. 465-494. 3 See muñoz noGaL, E.; Gómez isa, F., «¡Pan, Libertad, Justicia Social! Las revueltas populares de Túnez y Egipto y la defensa de derechos económicos y sociales», in J. Bonet Pérez and R. A. Alija Fernández (ed.), La exigibilidad de los derechos económicos..., op. cit., pp. 219-241. Challenging the transitional justiCe paradigm AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 657 have expressed concerns about the suitability of existing transitional justice mechanisms and tools to do this task. 4 Regarding the structure, the next section of this article analyses the current theoretical debate about including ESRs violations in transitional justice. it then seeks to refute concerns about their inclusion by outlining that some conceptual confusion occurred when trying to address ESRs in transitional justice processes. 5 Certainly, ESRs are just one element of the socioeconomic dimension of transitional justice and state failures to respect and protect them can be relatively straightforward addressed within the existing transitional justice tools. 6 indeed, addressing socioeconomic issues and ESRs violations in transitional justice strategies can provide crucial insight into the root causes of past violence while contributing to reduce the chances of recurrence in the future. Whereas it would be unrealistic to expect that the inclusion ESRs violations will resolve the full extent of the socioeconomic challenges at stake in post-conflict or post-authoritarian situations, this paper contends that addressing specific ESRs depending on the particular context, could contribute towards such wider goals. Having examined the transitional justice scholarship debate, this paper then also explores how ESRs can be potentially addressed by the existing transitional justice mechanisms, providing real examples of how it has already been done in specific transitional justice processes. Mechanisms will be considered in this core section according to their transitional justice process belonging, namely, truth, justice, reparations and and institutional reform. Finally, last section presents the conclusions and suggestions for the way forward. ii. traditionaL invisiBiLity oF esrs in transitionaL justice processes Together with international criminal law and international humanitarian law, international human rights law remains the most frequently invoked legal framework of transitional justice scholarship and policymaking. However, 4 See duthie, R., «Transitional Justice, Development, and Economic violence», in Justice and Economic Violence in Transition, Dustin n. Sharp (ed.), Springer, 2014, pp. 165-201. 5 schmid, E.; noLan, A., «Do no Harm’? Exploring the Scope of Economic and Social Rights in Transitional Justice», The International Journal of Transitional Justice, vol. 27, no. 3, 2014, pp. 362-382. 6 Ibid., p. 375. Laura García Martín 658 AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 transitional justice –in both its institutional and scholarly dimensions– has historically focused on violations of CPRs and, hence, excluded socioeconomic aspects of conflict and authoritarianism, such as violations of ESRs, structural violence, and development. 7 There are several reasons why transitional justice has historically tended to neglect economic and social wrongs. 8 on the one hand, transitional justice has been heavily influenced by human rights law and its longstanding bias towards CPRs, being this last set of rights traditionally considered as more justiciable rights. 9 Traditional conceptions considered that identifying violations, perpetrators, and remedies was easier when it comes to CPRs. Similarly, the notion of ‘liberal peacebuilding’ has been often applied in transitional contexts, which supports the idea that political and economic liberalisation promotes sustainable peace, based on the thinking that market democracies are less likely to get into conflict. Following this neoliberal approach, transitional justice has been largely ignoring ESRs violations. in addition, criminal justice, and particularly, international criminal law, has profoundly influenced the rise of transitional justice as a field. international criminal law mostly focuses on CPRs linked to bodily integrity, such as torture and killings, and it emphasizes individual criminal responsibility rather than structural causes of conflict or repression. 10 indeed, limitations imposed by a focus on prosecutions also explain why the historical focus of transitional justice has not either been on economic actors. 11 Furthermore, historical context in which the field emerged helps to explain why socioeconomic concerns were left outside the bounds of transitional justice. Given that initial transitions were conceived as short-term projects, socioeconomic issues were seen as new tasks for successor regimes in the post-transition period. 7 indeed, socioeconomic considerations are almost totally absent in two of the most relevant works on transitional justice, such as teiteL, R., «Transitional Justice Genealogy», Harvard Human Rigths Journal, vol.16, no.1, 2003, pp. 69-94; eLster, J., Closing the Books: Transitional Justice in Historical Perspective, Cambridge, Cambridge university Press, 2004. 8 For a further analysis on the causes see WaLdorF, L., «Anticipating the Past: Transitional Justice and Socio-Economic Wrongs», Journal of Social & Legal Studies, vol. 21, no.2, 2012, pp. 171-186. 9 cahiLL-ripLey, A., «Foregrounding socio-economic rights in transitional justice: realising justice for violations of economic and social rights», Netherlands Quarterly of Human Rights, vol. 32, no. 2, 2014, pp. 183-213. 10 miLLer, Z., «Effects of invisibility: in search of the «economic’ in transitional justice», International Journal of Transitional Justice, vol.2, no. 3, 2008, pp. 266-291. 11 See roth-arriaza, supra note 1 at 23. Challenging the transitional justiCe paradigm AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 659 on the other hand, mandates of both tribunals and truth commissions have traditionally relied heavily upon the realisation of human rights in the new transitional state, so they have tended almost uniformly to emphasize CPRs rather than socioeconomic ones. Consequently, socioeconomic concerns become doubly reduced, excluded by a focus on legalistic rights discourse first, and, second, left out according to the common preference of human rights mechanisms for CPRs violations. 12 The well-known Louis Arbour’s speech in 2006 in which she advocated for more attention to ‘economic and social justice for societies in transition’, 13 marked a turning point in the current debate on economic and social dimensions of transitional justice. Arbour clearly pointed the importance of integrating ESRs into ‘the transitional justice framework’, as well as highlighting how some specific transitional justice mechanisms have already dealt with these rights. Additionally, Arbour argued that ‘violations of civil and political rights are intrinsically linked to violations of economic, social, and cultural rights.’ 14 Several scholars and practitioners heeded Arbour’s call. 15 Rama Mani, for instance, insisted that transitional justice ‘will lose credibility in the predominantly impoverished and devastated societies where it operates’ if it does not tackle social injustice, corruption, resource exploitation and criminal violence. 16 Similarly, The international Journal of Transitional Justice devoted a special issue to transitional justice and development in 2008, and the international Center for Transitional Justice published an edited collection on the 12 mcevoy, K., «Beyond Legalism: Towards a Thicker understanding of Transitional Justice», Journal of Law and Society, vol. 34, no.4, 2007, pp. 411-440. 13 Then, the united nations High Commissioner for Human Rights. Before Arbour’s speech, some had already criticised TRCs such as South African one for narrowly focusing on CPRs abuses. arBour, L., «Economic and Social Justice for Societies in Transition», International Law and Politics, vol. 40, no.1, 2007, pp. 1-3. 14 Ibid., pp. 3-7. Additionally, in her speech, Arbour criticised united nation Former Secretary General Kofi Annan for adopting a narrow formulation of justice in his important 2004 report on transitional justice. 15 See i.e. carranza, R., «Plunder and pain: Should transitional justice engage with corruption and economic crimes?», International Journal of Transitional Justice, vol. 2, 2008, pp. 310-330; Gready, P., The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond, Routledge, 2010; Şahinkaya, Y., «The expanded scope of Transitional Justice: Addressing Root Causes of Economic, Social and Cultural Rights violations’, Human Rights Review, vol. iii, no. 1, 2013, pp. 108-125. 16 mani, R., «Editorial: Dilemmas of expanding transitional justice, or forging the nexus between transitional justice and development», International Journal of Transitional Justice, vol. 2, 2008, p. 254. Laura García Martín 660 AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 same topic in 2009. over the past few years, both scholars and practitioners have been promoting holistic approaches to the field of transitional justice, including potential links between ESRs and development. 17 Furthermore, un policy, scholarship and practice in the field of transitional justice have been also influenced by Arbour’s speech. For instance, in 2009 the Human Rights Council adopted a resolution that underlined the importance of ensuring that violations of all human rights, including economic, social and cultural rights, are addressed in transitional contexts. 18 Lately, the complex debate about whether transitional justice should –and could– incorporate economic and social issues has substantially expanded, both in authors’ engagement and relevance. not all scholars and practitioners share positive arguments on the desirability of including socioeconomic concerns in the transitional process. Waldorf, for instance, argued that the ‘shift in transitional justice discourse and practice with respect to economic and social rights’ is deeply problematic, as he conceives transitional justice as ‘inherently short-term, legalistic and corrective’, so he argues that it should focus on accountability for gross violations of CPRs. 19 on the other hand, some commentators have suggested that in order to include ESRs violations and socioeconomic grievances, transitional justice as a field must be rethought. 20 Given that transitional justice has historically focused on CPRs violations, they content that the inclusion of ESRs would require a paradigm shift within the entire field. in this sense, some authors go beyond considering the notion of ‘transformative justice’ as an alternative for addressing socioeconomic issues in transitional justice. Lambourne, for instance, proposes a transformative model of transition which requires a transformation in social, economic and political structures and relationships. 21 Accordingly, several scholars have called on including so- 17 See i.e. de GreiFF, P.; duthie, R., Transitional Justice and Development: Making Connections, new York, Social Science Research Council, 2009. 18 «Human Rights Council Resolution on Transitional Justice and Human Rights», un Doc. A/ HRC/ RES/12/11 (12 october 2009), para. 18 and preamble. 19 See WaLdorF, supra note 8 at 171. 20 See i.e. haLdemann, F.; kouassi, R., «Transitional Justice without Economic, Social and Cultural Rights?», in Economic, Social, and Cultural Rights: Contemporary Issues and Challenges, eds. Eibe Riedel, Gilles Giacca, and Christophe Golay (eds), Oxford University Press, 2014, pp. 498-514; See also oré aGuiLar, G.; Gómez isa, F. (eds.), Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, intersentia, 2011. 21 Lambourne concludes that in addition to accountability or legal justice, attention needs to be paid to the psychosocial processes, socioeconomic conditions and political context in order for Challenging the transitional justiCe paradigm AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 661 cial justice in transitional justice processes. Supporters of this theory argue that, to have an actual impact on victims’ positions, transitional justice strategies need to integrate mechanisms to address all human rights violations, including those related to ESRs. But transformative justice has also faced criticism and has been questioned for being thin on conceptual inspiration and making a limited impact in practice. in fact, some commentators have argued that this theory seeks to fundamentally change the priorities of transitional justice by challenging ‘unequal and intersecting power relationships and structures of exclusion at both the local and the global level’. 22 others are concerned about transitional justice becoming analytically overstretched and impractical if it tries to include too much, so goals of social justice may be better left to other fields, such as development policies. 23 Duthie, for instance, argues that even if transitional justice as a field should become ‘development sensitive’, it is debatable whether such linkages would be transformative enough. 24 in this same line, it may be questioned whether such transformative initiatives will promote social unrest in already unstable societies in transition. Be that as it may, scholarship and practitioners have been lately calling for a broad framework, moving towards the integration of socioeconomic grievances and promotion of social justice in transitional justice strategies. As McGonigle notes, however, this call is still largely aspirational and significant empirical data is needed. 25 Concerning this debate, Schmid and nolan have usefully pointed out that when employing rights language, the current debate on the economic and social dimensions of transitional justice frequently suffers from terminological and conceptual confusion. 26 They argue that the distinction between ESRs and broader socioeconomic issues often gets lost, so an accurate understanding of ESRs and the obligations they impose is needed. According to them, these transitional justice to support peacebuilding. LamBourne, W., «Transformative justice and Peacebuilding», in S. Buckley-Zistel, T. Koloma Beck, C. Braun, and F. Mieth (eds.), Transitional Justice Theories, Routledge, 2014, pp. 19-39. 22 Gready, P.; roBins, S., «From Transitional to Transformative Justice: A new Agenda for Practice’, International Journal of Transitional Justice, vol 8, no. 3, 2014, p. 347. 23 mcGoniGLe Leyh, B., «The Socialisation of Transitional Justice: expanding justice theories within the field», Human Rights and International Legal Discourse, no.1, 2017, pp. 83-95. 24 duthie, R., «Towards a Development-sensitive Approach to Transitional Justice», International Journal of Transitional Justice, vol.2, no.3, 2008, pp. 292-309. 25 mcGoniGLe supra note 23 at 94 26 schmid and noLan supra note 5 at 362. Laura García Martín 662 AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 misconceptions about the legal framework led many commentators to conclude that inclusion of ESRs needs to rethink transitional justice as a whole. Certainly, ESRs are just one aspect of the socioeconomic dimension of transitional justice and their inclusion is perfectly conceivable. indeed, addressing many violations of ESRs can be relatively straightforward, particularly those related to states’ obligations to respect and protect. 27 While determining the full scope of the state’s maximum resources available may require a complex analysis, assessing data on ESRs enjoyment across society is much clearer. Additionally, there are some ESRs rights that do not require significant resources but the States respect and protection, and therefore, they should be implemented immediately. Furthermore, ESRs obligations are also increasingly justiciable, as they have been enshrined in some State consitutions and regional human rights regimes, 28 and acknowledging state failures to respect and protect can contribute to reinforce such State obligations. on the contrary, ignoring ESRs violations could be regarded as allowing impunity, which might aggravate violence and result in a new conflict. Transitional justice thus will not be truly effective if violations of ESRs continue to be disregarded or limited to the background of conflict or repression. Selecting and prioritising which particular ESRs should be considered would ultimately depend on the specific circumstances, including the nature of past violations as well as the resource constraints of transitional justice institutions. 29 Most likely, some specific ESRs concerns would require long-term policy design and implementation, and may therefore not be conveniently covered by transitional justice mechanisms. Conversely, there would be others discrete and remediable enough to be properly addressed by transitional justice strategies, as it will be evidenced in next section. However, although transitional justice should no longer ignore ESRs violations, this author is equally awared that transitional justice mechanisms would not solve by its own means the consequences of those violations. While it would be naïve to expect that the inclusion of ESRs will resolve the full ex- 27 Ibidem. 28 See for instance, African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 october 1986, reprinted in iLM 21 (1982) 59, art. 19(1), o.A.u. Doc. CAB/ LEG/67/3 rev. 5, arts. 14 (right to property), 15 (right to work), 16 (right to health), 21 (right to free disposal of wealth and natural resources); Association of South East Asian nations [ASE- An], ASEAN Human Rights Declaration, 21st Summit (nov. 19, 2012), arts. 27 (right to work), 28 (right to adequate standard of living), 29 (right to health), 30 (right to social security). 29 See szoke-Burke supra note 2 at 473. Challenging the transitional justiCe paradigm AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 663 tent of the socioeconomic challenges at stake in post-conflict or post-authori- tarian contexts, it that does not mean that properly addressing them could not contribute towards such broader goals. However, this author argues that in order to achieve social justice and to alleviate structural poverty and marginalization, transitional justice strategies should be designed and implemented alongside with development programmes, so they can work together in the area of socioeconomic rights to improve their enjoyment in transitional contexts. 30 Be that as it may, this new holistic and inclusive interpretation of transitional justice has been taken up by the united nations 31 and the European union 32 at institutional level. Although initiatives in this sense have not completely changed the traditional paradigm of transitional justice, they endorse greater emphasis on ESRs violations in transition. indeed, the office of the un High Commissioner produced in 2014 a report about how to better address ESRs through the existing mechanisms in transitional justice processes. 33 notably, this document called for more sustained and detailed research in the area of transitional justice, root causes of conflict and large-scale violations of ESRs. on the other hand, many truth commissions have begun to examine ESRs and expanded their scope to broader socioeconomic issues, such as those of Sierra Leone and Timor Leste as it will be further examined in next section. iii. addressinG esrs in transitionaL justice processes Some traditional transitional justice mechanisms have been already employed to address ESRs in transition, although they have been often fairly limited in scope. Amongst the transitional justice toolbox, it is commonly agreed that Truth Commissions and reparations are the two mechanisms that have gone furthest in handling economic and social wrongs are truth commissions and 30 See in this sense, de GreiFF, P., «Articulating the Links between Transitional Justice and Development: Justice and Social integration’, supra note 17 at 63. 31 Guidance note of the Secretary-General on the united nations Approach to Transitional Justice, March 2010. 32 Council of the European union, Secretary-General of the European Commission, Joint Staff Working Document: The Eu’s Framework on support to transitional justice, Doc. SWD 158 final, 7 August 2015. 33 unHRC Report, «Transitional Justice and Economic, Social and Cultural Rights’, HR/ PuB/13/5, 2014. Laura García Martín 670 AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 TRC’s reports often make recommendations to States on reparations on the basis of administrative reparation programmes. Some programmes include different forms of reparation that could have an impact on the realization of ESRs, although it should be examined with caution due to implementation and financing problems. Reparations have a limited scope, which means that trying to use them to solve deeper structural inequalities is fraught with difficulties, from the huge sums needed to the inability to adequately determine the beneficiary class. 66 in this sense, Peru’s TRC made recommentations for collective reparations for traditionally marginalised regions as a result of the long period of violence. 67 Collective reparations can address past ESRs violations while employed at the same time to improve socioeconomic conditions of communities, for instance, providing public infrastructure and services or funding industry initiatives. on the other hand, attempting to provide reparations for too broad a category of violations will not only be prohibitively expensive but also risky regarding the expectations. Accordingly, reparations of ESRs violations have been focused so far on cases of dispossession of land or other property, which led to denial of livelihood, labour rights, health and other rights. only recently have there been efforts to compensate or restitute lands taken for tactical or economic reasons within the context of armed conflict, but requiring proof that the dispossession was deliberately induced for political or discriminatory reasons. 68 notwithstanding the above mentioned, reparations awarded by the iACtHR have incorporated the realisation of ESRs in innovative ways. Particularly relevant in this sense is the case of Plan de Sánchez Massacre v. Guatemala, 69 where the Court considered that the massacre ‘gravely affected the identity and values of the members of the Maya-Achí people’, thus recognizing the infringement of cultural rights and the damage caused to all things that made the 66 For an account of the evolution of Peru’s reparations program in light of these concerns, see García-Godos, J., «victims Reparations in the Peruvian Truth Commission and the Challenge of Historical interpretation», International Journal of Transitional Justice, vol.2, no.10, 2008, pp. 63-82. 67 correa, C., Reparations in Perú: from recommendations to implementation, iCTJ Report, 2013, pp. 5-7. 68 duthie, R., «Transitional Justice and Displacement», International Journal of Transitional Justice, vol.5, no.2, 2011, pp. 241-261. in the case of South Africa, for instance, the law required a causal link between the dispossession and racially discriminatory laws and practices. 69 iACtHR, Plan de Sánchez Massacre v. Guatemala, Judgement of 19 november 2004, Series C, no. 116, in particular paras. 81, 100, 104-105, 107 and 110. Challenging the transitional justiCe paradigm AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 671 livelihood of the community possible. The Court ordered both individual and collective reparations for pecuniary and non-pecuniary damage. 70 Additionally, the Court ordered the state to implement certain development programmes, intrinsically related to the enjoyment of ESRs. With those decisions, the Court intended not only to restore the situation ex ante, but also to correct situations which it considered contrary to the spirit of international human rights law. Another relevant case in this sense related to workers’ rights is De La Cruz Flores v. Perú, where the iACtHR held that a doctor who was arbitrarily detained had to be reincorporated at the same level as he was before the detention took place. 71 Similarly, in the case Loayza Tamayo v. Perú, the Court ordered the victim’s reincorporation to the teaching service and established that the salary and other benefits should be equivalent to the moment of her detention. 72 According to Roht-Arriaza, reparations intersect with ESRs as the material reparations offered are both forward and backward looking, aimed at both redressing past harms and transforming lives for the future. While ESRs are often concomitantly violated with the basic CPRs, 73 they have received little the attention from reparation programmes so far. 74 iii.4. Institutional reform According to the commentary on the updated principles to combat impunity ‘institutional reform should be of a ‘comprehensive’ nature for it to be ‘a foundation for sustainable justice.’ 75 Consequently, institutional reform 70 The Court awarded $5,000 to each victim for pecuniary damage and $20,000 to each victim, partly for the damage caused to their culture heritage. 71 iACtHR, De La Cruz Flores v. Perú. Merits, Reparations and Costs. Judgement of 18 november 2004, Serie C no. 115, paras. 169 y 171. 72 iACtHR, Loayza Tamayo v. Perú. Reparations and Costs. Judgement of 27 november 1998, Serie C no. 42, paras. 113/114. 73 For instance, family members of those killed or forcibly disappear suffer, not only the harm of losing a loved one, but also the loss of a breadwinner, the need to flee, the loss of schooling opportunities etc. 74 in this sense it is worth mentioning that the jurisprudence of the inter-American Court of Human Rights compensates survivors for these lost opportunities through the concept of changes in their ‘life’s project’ (proyecto de vida). This was first introduced in the Loayza Tamayo case and developed in subsequent cases. 75 orentLicher, D., Report of the Independent Expert to Update the Set of Principles to Combat Impunity, un Doc. E/Cn.4/2005/102 (18 February 2005), para. 66. Laura García Martín 672 AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 mechanisms should deal both with structural transformations of those who participated in human rights violations and the root causes of conflict or repression in order to prevent further violations. Specifically with regard to ESRs, institutional reform is a key dimension of transitional justice as it has the potential to trigger structural changes. At the same time however it is one of the most under-researched and unexplored areas. The Comprehensive Peace Agreement between the Government of nepal and the Communist Party of nepal signed in november 2006 is a good example of including ESRs through institutional reform mechanisms. The agreement explicitly calls for the establishment of a political system that fully complies with universally accepted human rights (sects. 3.4 and 7.1.2) and ends discrimination (sect. 3.5); and for the protection of the right to education, shelter, food security, social security, health and employment, as well as for land reform (sects. 3.9 and 7.5). 76 However, the development and implementation of those principles and goals has so far not been as satisfactory as expected. 77 Similarly, the transitional justice process in the post-apartheid regime in South Africa also required structural reforms in different areas, in which commitment to non-discrimination was essential. The institutional reform there began with the adoption of the interim Constitution (Act 200 of 1993), which contained a chapter on fundamental rights, including ESRs. The interim Constitution recognised the justiciability of all fundamental rights without any distinction. 78 Also, the Truth and Reconciliation Commission in South Africa dealt with institutional reform in different areas. While it did not consider specific violations of ESRs, it emphasized that ‘the recognition and protection of socioeconomic rights are crucial to the development and sustaining of a culture of respect of human rights’. 79 The Commission likewise recognised that businesses and financial institutions should help in the reconstruction by making resources available to those most in need. 80 76 Comprehensive Peace Agreement between the Government of nepal and the Communist Party of nepal (Maoist), (22 november 2006). 77 See i.e, pasipanodya, T., «A deeper justice: economic and social justice as transitional justice in nepal», International Journal of Transitional Justice, vol.2, no. 3, 2008, pp. 378-397. 78 Constitutional Principles, number ii, «Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution’. 79 South African Truth and Reconciliation Commission Report, vol. 5, chapter 8, 308. 80 Ibid., pp. 318-320. Challenging the transitional justiCe paradigm AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 673 on the other hand, vetting procedures as part of institutional reform are a key tool that can be used to remedy and prevent human rights violations. vetting is generally understood as the process of ensuring that public officials responsible for gross human rights violations do not continue to serve in state employment. 81 As Szoke-Burke notes, where breaches of ESRs were linked to the past conflict, vetting those who are guilty of ESRs violations, including non-state actors, can be an effective means of ensuring non-recurrence and of strengthening the rule of law. 82 The above-mentioned examples and experiences reveal some ways in which different institutional reform measures can be used to address ESRs within the transitional justices process. However, it is important to be aware that institutional reform is a lengthy process, so results might be perceived only in the mid and long term. They will certainly depend on political will and the existence of adequate resources to carry them out. iv. concLudinG thouGhts Although transitional justice has been traditionally focused on bodily integrity violations, recent claims and debates open the door to include socioeconomic conditions and violations of ESRs within the existing transitional justice mechanisms. However, whether transitional justice should include ESRs and how this inclusion could be articulated is still highly disputed within transitional justice scholarship. in this sense, it should be noted that ESRs are just one element of the socioeconomic dimension of transitional justice, and addressing State failures to respect and protect ESRs is perfectly conceivable within the existing transitional justice tools. While it would be unrealistic to expect that addressing ESRs violations would resolve the full extent of the socioeconomic challenges in transitional justice contexts, ESRs violations should not be longer ignored. indeed, disregarding ESRs violations in transitional justice processes risks leaving important causes of the violent past unaddressed, so including state failures to respect and protect ESRs according to their particular context and past violent dynamics, could definitely contribute to improve socioeconomic concerns in this regard. 81 orentLicher, supra note 75 at principle 36.a. 82 szoke-Burke, supra note 2 at 489. Laura García Martín 674 AnuARio ESPAñoL DE DERECHo inTERnACionAL / voL. 35 / 2019 Several commentators contended, however, that social justice should also be included in transitional justice processes, which led to a new approach so-called transformative justice. This approach, which theoretically implies to provide economic, legal and political justice in an effort to transform state structures, it has been questioned for being thin on conceptual inspiration and making a limited impact in practice. While moving towards the integration of socioeconomic concerns in transitional justice would be desirable, research is still need it in order to examine to what extend this could mean a significant transformative change. Eventually, development projects should be designed and implemented alongside with transitional justice strategies to improve socioeconomic conditions and ESRs enjoyment. Additionally, this article illustrated how ESRs violations can be effectively addressed with the existing transitional justice mechanisms. TRCs have proved to be a suitable instrument to identify and acknowledge ESRs violations, as well as to provide corresponding recommendations to remedy such violations. in addition, litigation is becoming also an important tool in ending impunity for ESRs violations, not only at regional human rights level, but also at national constitutional courts. Both mechanisms are as well potentially able to identify the role of all perpetrators including non-state actors, which often participated or benefiting from ESRs violations in conflict or repressive regimes. Likewise, reparations can alleviate victims’ harm and even contribute to collective transformative effects, although resources are frequently limited due to budgetary constraints. institutional reform can also contribute to improve general socioeconomic conditions, as well as vetting those who perpetrated or directly benefited from ESRs violations. This article has also contended that specific criteria grounded in solid theoretical and legal analysis and empirical research must be established to determine which ESRs violations should be addressed and at what priority level in each specific case. To this aim, it would be appropriate to give transitional justice mechanisms wide and comprehensive mandates, so specific priorities and areas of focus can be determined by them at operational level. once again, limits will depend on the specific context and circumstances, but it seems that a smart mix of mechanisms which work complementarity would be the best option to deal with past ESRs violations in transitional justice processes. Effectively addressing ESRs does ultimately contribute to reinforce the indivisibility of human rights but more importantly, would be crucial to achieve a successful transition and a sustainable peace. 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