Not Only ‘Context’: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights

Abstract

Transitional justice programs traditionally focused on breaches of civil and political rights and violations of bodily integrity, largely ignoring violations of economic and social rights (ESRs) and relegating socioeconomic issues to the category of ‘background’ or context. This approach is becoming increasingly untenable given that ESRs articulate binding and increasingly justiciable legal obligations. Considering past ESR violations can also provide crucial insight into the causes of past conflict, and addressing socioeconomic grievances can help to reduce the chances of future rights violations or civil unrest. This Article sets out when transitional justice ought concern itself with breaches of ESRs using the ‘respect, protect, fulfill’ framework of state obligations. Drawing on past examples, the Article argues that failures to respect and protect ESRs are usually discrete enough to be included in the mandates of truth commissions, reparations schemes, and, in some cases, criminal prosecutions. Decentralization programs and the vetting of corrupt economic actors can also effectively address past ESR violations and lead to socioeconomic improvements. Addressing state failures to fulfill ESRs is a more complicated question, although there are occasions where such violations should be included in transitional justice mandates. Ultimately, transitional justice can no longer ignore that ESRs articulate non-negotiable and clearly defined standards, which often hold the key to stable and sustainable political transitions.