NQHR 2014-02.indb


Netherlands Quarterly of Human Rights, Vol. 32/2, 183–213, 2014.
© Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 183

FOREGROUNDING SOCIO-ECONOMIC 
RIGHTS IN TRANSITIONAL JUSTICE: 

REALISING JUSTICE FOR VIOLATIONS 
OF ECONOMIC AND SOCIAL RIGHTS

Amanda Cahill-Ripley*

Abstract:

Transitional justice has traditionally ignored or sidelined violations of economic 
and social rights, focussing on violations of civil and political rights as the primary 
grave human rights violations to be addressed when seeking justice for past atrocities. 
Th is paper explores the omission of these rights from the fi eld and uncovers the 
shortcomings of such an approach. It will argue that there is a need for transitional 
justice to address both deliberate violations of economic and social rights resulting 
from confl ict or repression, but also structural violations which have acted as 
root causes of confl ict within the State. It is submitted that past experiences of 
prosecutorial and restorative justice illustrate that violations of economic and social 
rights have been acknowledged as background information rather than primary 
concerns for transitional justice. In conclusion it is contended that economic and 
social rights need to be brought to the foreground of transitional justice processes 
in order to ensure eff ective transitional justice which refl ects the needs and rights of 
the local population, and addresses the root causes of confl ict, thus preventing confl ict 
reoccurring around the same sources. Th e inclusion of economic and social rights 
concerns within transitional justice mechanisms will therefore contribute to a more 
holistic and inclusive transitional justice process.

Keywords: confl ict; economic, social and cultural rights; international criminal 
law; peacebuilding; social justice; structural violence; transitional justice; truth 
commissions

* Amanda Cahill-Ripley is Lecturer in Law at Lancaster University, UK and Visiting Lecturer in 
Human Rights Law at the University of Bergen, Norway. Contact a.cahill@lancaster.ac.uk.



Amanda Cahill-Ripley

184 Intersentia

1. INTRODUCTION

Transitional justice has traditionally ignored or sidelined violations of economic and 
social rights, focussing almost entirely on violations of civil and political rights as the 
primary grave human rights violations to be addressed when seeking justice for past 
atrocities.1 Whilst selected authors have addressed the at times confl icting aims of 
‘justice’ and ‘peace’,2 very little attention has been given to the consequences for peace 
and justice if violations of economic and social rights are either completely ignored, 
are relegated to secondary concerns or are presented as ‘background’ information, 
that is information which is setting the context for what are perceived as more serious 
violations of civil and political rights. Whilst violations of economic and social rights 
may seem to be of a lesser gravity than those of civil and political rights (such as 
the right to life and freedom from torture), socio-economic rights violations can 
constitute gross human rights violations. Some examples may include the burning 
and destruction of homes and crops; the poisoning of water; forced evictions; 
deliberately induced starvation and displacement leading to lack of housing, water 
and food, subsequent ill health and disease, lack of education and employment and in 
the worst cases human deaths.

Moreover, such violations may be more widespread and systematic. For instance, 
in the confl ict in Timor-Leste it was noted that far more people were aff ected by 
economic and social rights violations than civil and political rights violations.3 Th e 
displacement of people from their villages, farms and traditional settlements resulted 
in severe violations of the rights to food, health, housing, education, self-determination 

1 Offi  ce of the High Commissioner for Human Rights, Analytical study on human rights and 
transitional justice (United Nations 2009) A/HRC/12/18 para 59; International Council on 
Human Rights Policy, Negotiating Justice? Human Rights and Peace Agreements (International 
Council on Human Rights Policy 2006) 101; Lisa Laplante, ‘Transitional Justice and Peace 
Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human 
Rights Framework ’ (2008) 2 Th e International Journal of Transitional Justice 331, 333; L. Waldorf, 
‘Anticipating the Past: Transitional Justice and Socio-Economic Wrongs’ (2012) 21(2) Social and 
Legal Studies 171, 173.

2 Hurst Hannum, ‘Peace versus Justice: Creating Rights as well as Order out of Chaos’ (2006) 13(4) 
International Peacekeeping 582; N. Roht-Arriaza and J. Mariezcurrena (eds), Transitional Justice in 
the 21st century – Beyond Truth versus Justice (Cambridge University Press 2006); I. Zartman and 
V. Kremeniuk (eds), Peace Versus Justice: Negotiating Forward- and Backward-looking Outcomes 
(Rowman and Littlefi eld 2005); Ellen L. Lutz, Eileen F. Babbitt, and Hurst Hannum, ‘Human Rights 
and Confl ict Resolution from the Practitioners’ Perspectives’ (2003) 27(1) Th e Fletcher Forum 
of World Aff airs 173; C. Lekha Sriram and S. Pillay (eds) Peace Versus Justice?: Th e Dilemmas of 
Transitional Justice in Africa (James Currey Publishers 2010); P. Schulz, Peace Versus Justice?: Th e 
International Criminal Court (ICC) in Africa (VDM Publishing 2011).

3 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! Th e Report of 
the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR) (Commission for 
Reception, Truth and Reconciliation 31  October 2005) Executive Summary 74; ch 7.9: Economic 
and Social Rights.



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 185

of resources and freedom of movement.4 Th ese economic and social rights violations 
were directly attributable to the confl ict.

In addition, violations of economic and social rights can act as confl ict triggers.5 As 
the International Council on Human Rights Policy notes, ‘[…] socio-economic issues 
oft en lie at the core of confl icts, and are particularly implicated in the transitional 
period, when reconstruction of war-torn societies must take place’.6 As such, ignoring 
violations of such rights is a risk both to the peace process and the eff ectiveness of 
justice mechanisms during transition. Th e Editors of Th e International Journal of 
Transitional Justice note,

Our preoccupation with justice aft er civil upheaval seems to outstrip our attention to 
preventing or attending to the systematic injustices – economic, social and political – that 
fuel the causes that erupt into paroxysms of violence. We have an international criminal 
court to prosecute war criminals, yet millions of civilians are deprived of adequate water, 
nutrition and healthcare […]. Th ere is a conspicuous absence of international accountability 
for these injustices.7

Th is paper will explore this omission of economic and social rights from transitional 
justice. It will examine possible reasons for the limited attention or indeed exclusion 
of these rights and uncover the shortcomings of such an approach. It will investigate 
whether there is a need to redefi ne transitional justice, to embrace a holistic 
conception of justice8 inclusive of ideas of social justice including therefore justice for 
violations of economic, social and cultural rights. It will argue that the recognition 
of these rights within transitional justice mechanisms will make transitional justice 
more eff ective in responding to the needs of the people, fi rstly by seeking remedy for 
deliberate and direct violations of economic and social rights but also by addressing 
violations of these rights which have acted as root causes of confl ict, thus helping to 
prevent confl ict reoccurring around the same sources. Further, if human rights are 
truly indivisible and interdependent violations of civil and political rights cannot be 
addressed eff ectively in times of transition unless corresponding and related violations 
of economic and social rights are also addressed. Th e inclusion of economic and social 
rights concerns within transitional justice mechanisms will therefore contribute to a 
more holistic and inclusive transitional justice process.

4 Ibid.
5 Offi  ce of the High Commissioner for Human Rights (n 2); E. Schmid, ‘Liberia’s Truth Commission 

Report: Economic, Social and Cultural Rights in Transitional Justice’ (2009) XXIV Praxis – Th e 
Fletcher Journal of Human Security 5, 6; S.C. Agbakwa, ‘A Path Least Taken: Economic and Social 
Rights and the Prospects of Confl ict Prevention and Peacebuilding in Africa’ (2003) 47(1) Journal 
of African Law 38, 40; Laplante (n 1) 334–335.

6 International Council on Human Rights Policy (n 1) 101.
7 Editorial, (2012) 6(1) International Journal of Transitional Justice (IJTJ) 6.
8 A. Boraine, ‘Transitional Justice: A Holistic Interpretation’ (2006) 60(1) Journal of International 

Aff airs 17, 17.



Amanda Cahill-Ripley

186 Intersentia

Th e defi nition of transitional justice is contested: One frequently quoted defi nition 
is provided by Roht-Arriaza, who defi nes transitional justice as ‘a set of practices, 
mechanisms and concerns that arise following a period of confl ict, civil strife or 
repression, and that are aimed directly at confronting and dealing with past violations 
of human rights and humanitarian law’.9 However, as Arbour argues,

Transitional justice must have the ambition to assist the transformation of oppressed 
societies into free ones by addressing the injustices of the past through measures that will 
procure an equitable future. It must reach to – but also beyond – the crimes and abuses 
committed during the confl ict that led to the transition, and it must address the human 
rights violations that pre-dated the confl ict and caused or contributed to it. With these aims 
so broadly defi ned, transitional justice practitioners will very likely expose a great number 
of discriminatory practices and violations of economic, social, and cultural rights.10

With such variety in the interpretation of what transitional justice is, the fi rst section 
of the paper will examine current defi nitions of transitional justice and explore the 
reasons why economic and social rights have been largely excluded from the fi eld. 
Th is will include an investigation of the notion of justice inherent in transitional 
practices. Second, the author will examine previous examples of transitional justice 
mechanisms to explore how they have dealt with violations of economic and social 
rights. Th is will include consideration of prosecutorial methods such as international 
tribunals and the International Criminal Court (ICC) and an investigation of 
restorative methods such as truth and reconciliation commissions. Cases explored 
include South Africa, Liberia, Sierra Leone and Timor-Leste. Th ese particular cases 
have been selected as limited examples where the Commissions have considered 
economic and social rights in some way. Finally there will be a discussion on how to 
expand and develop the concept and practice of transitional justice to incorporate 
these rights, including off ering proposals for improvement drawn from good practice 
and identifying continuing challenges to this process.

2. WHY IS THERE A LACK OF ECONOMIC AND SOCIAL 
RIGHTS WITHIN ‘TRADITIONAL’ TRANSITIONAL 
JUSTICE?

2.1. THE ‘NARROW’ DEFINITION OF TRANSITIONAL JUSTICE

It is submitted that ‘Traditional’ transitional justice consists of prosecutorial justice, 
such as tribunals and trials, where the focus is on establishing accountability, 

9 Roht-Arriaza and Mariezcurrena (n 2) 2.
10 L. Arbour, ‘Economic and Social Justice for Societies in Transition’ (2007) 40(1) International Law 

and Politics 1, 3.



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 187

responsibility and punishment for crimes. It also consists of mechanisms of restorative 
justice, although the concept of ‘restorative justice’ is limited in this discussion to 
truth and reconciliation commissions.11 Th is mechanism focuses on the idea of 
‘truth telling’ as allowing reconciliation. Th e above mechanisms are judicial or quasi-
judicial and their primary mandate is to deal with mass and grave violations that 
have occurred during the confl ict in question. However, very little consideration has 
been given to economic and social rights within these mechanisms. Th ere are several 
reasons for this. One reason for the omission (or very limited consideration) of such 
rights to date is simply because economic and social rights are not seen as within the 
remit of transitional justice. Th is argument is dependent on how transitional justice 
is defi ned and what the role of transitional justice is believed to be. Transitional 
justice has many defi nitions,12 and arguments have been put forward for it to include, 
for instance, justice for economic crimes, development concerns and local and 
community-based approaches to justice and reconciliation.13 However, it remains 
overwhelmingly concerned with criminal prosecutions and truth commissions in 
relation to civil and political rights violations. Olsen defi nes transitional justice as 
‘the array of processes designed to address past human rights violations following 
periods of political turmoil, state repression, or armed confl ict’.14 Olsen notes ‘Human 
rights violations are defi ned as extrajudicial killings, disappearances, torture and 
arbitrary arrest and imprisonment’ only.15 Two signifi cant factors are apparent with 
this defi nition. First, the focus is purely on past violations, and, second, on violations 
of civil and political rights alone – not economic and social rights. Th is defi nition 
could be considered illustrative of the prevalent traditional concept of transitional 
justice which has dominated the fi eld until recently.16

2.2. ECONOMIC AND SOCIAL RIGHTS – NOT LEGAL RIGHTS

A further reason why transitional justice both in theory and in practice has tended 
to omit or severely limit consideration of economic and social rights is the familiar 

11 Other mechanisms such as reparations and institutional reform can be considered a part of 
restorative justice. For example see T. Olsen, L. Payne and A. Reiter, Transitional Justice in Balance 
– Comparing Processes, Weighing Effi  cacy (US Institute of Peace Press 2010) 12. However, in terms 
of traditional transitional justice, the focus has been very much on truth commissions.

12 For example see International Centre for Transitional Justice (ICTJ), Fact Sheet ‘What is Transitional 
Justice?’ (ICTJ 2009) at <http://ictransitional justice.org/about/transitional-justice>, last accessed 
14  June 2013; P. Arthur, ‘How Transitions Reshaped Human Rights: A Conceptual History of 
Transitional Justice’ (2009) 31(2) Human Rights Quarterly 321; C. Bell, ‘Transitional Justice, 
Interdisciplinarity and the state of the “Field” or “Non-Field”’ (2009) 3(1) International Journal of 
Transitional Justice 5; R. Teitel, ‘Th eoretical and International Frameworks – Transitional Justice in 
a New Era’ (2002) 26 Fordham International Law Journal 893; Arbour (n 10); and Olsen et al (n 11).

13 Editorial (n 7) 1–10.
14 Olsen et al, (n 11) 11.
15 Ibid, 11 original footnote 10.
16 Editorial (n 7) 6.



Amanda Cahill-Ripley

188 Intersentia

argument that these rights are not ‘real’ or ‘legal’ rights or at best constitute secondary 
rights – general aims to be achieved progressively as the ideal standard.17 Th is view 
contributes to the argument that economic and social rights are also non-justiciable.18 
Th e traditional conception of transitional justice has focussed upon grave violations 
of civil and political rights as the only justiciable rights that can be tried in a court 
of law. Th erefore, if economic and social rights are not viewed as justiciable rights 
they cannot be incorporated within this traditional model of transitional justice. 
Th is argument is also a consequence of the dependence within the fi eld on a criminal 
justice model (see below).

Moreover, there remains a general lack of understanding on the part of scholars 
and practitioners within the fi eld of transitional justice as to what economic and 
social rights are. For example, scholars have equated such rights with economic policy 
or development plans rather than comprehending them as distinct and discrete legal 
entitlements with a legally defi ned scope and normative content.19

2.3. THE IDEA OF CRIMINAL JUSTICE V OTHER NOTIONS OF 
JUSTICE

A third and related argument is that socio-economic rights have been omitted from 
transitional justice mechanisms because of the focus on criminal justice.20 Th ese 
mechanisms have relied on defi nitions of justice based in criminal law rather than 
utilising diff erent conceptions of justice, for example, social justice. Th is is also due to 
the dominance of prosecutorial forms of justice.21 Arbour has noted, ‘As transitional 
justice is heavily inspired by mainstream justice and criminal law, its neglect of 
economic, social, and cultural rights is merely symptomatic of a deep ambivalence 
within justice systems about social justice’.22 One explanation for this ambivalence 
towards social justice is the plethora of defi nitions surrounding the concept. 
Social justice has been defi ned as anything from distributive justice to equality of 
opportunity.23 Consequently, the idea of social justice has been largely excluded from 
the law as either an empty concept with little substance (for example, equality of 
opportunity) or as a radical concept such as redistributive justice, which can confl ict 
with liberal ideals of human rights and is ideologically and fi nancially unacceptable to 
many States. However, it is not necessarily undesirable to utilise the concept of social 

17 Arbour (n 10) 11; D. Sharp, ‘Addressing Economic Violence in Times of Transition: Toward a Positive-
Peace Paradigm for Transitional Justice’ (2012) 35 Fordham International Law Journal 780, 797.

18 R. Carranza, ‘Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic 
Crimes?’(2008) 2 Th e International Journal of Transitional Justice 310, 315.

19 For an example of such an approach see Waldorf (n 1).
20 Waldorf (n 1) 173.
21 Olsen et al (n 11) 12.
22 Arbour (n 10) 5.
23 Ibid, original footnote 10.



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 189

justice as a basis for expanding our ideas of what transitional justice should include, 
namely economic and social rights, but that in order to do so we need to defi ne what 
we mean by social justice. Th e following defi nition put forward by Louise Arbour is 
useful:

Social justice refers to minimum legal standards guaranteeing substantive equality 
(as refl ected in international human rights instruments prohibiting discrimination 
and protecting economic, social, and cultural rights) in the fulfi lment of the idea of 
freedom from want. Substantive equality is important to social justice, as equality with 
no qualifi cation may be misinterpreted as formal equality or equality of opportunities 
only.24

Th is conception of social justice can be defi ned as ‘substantive social justice’, where 
violations of economic and social rights can be seen as an element of social injustice. 
Th erefore, acknowledging and seeking remedy for these violations can be seen as 
a form of achieving substantive social justice which could be incorporated into 
transitional justice. Moreover, the link between such rights and social justice is 
not a new idea.25 Indeed, in the context of poverty alleviation, Williams notes that 
poverty is ‘the absence of basic justice for a specifi c person or groups of persons as 
a condition of severe material deprivation’ where justice is the ‘formal, impartial 
and consistent application of specifi c rules in relation to rights such as the rights to 
equality, human dignity, […] housing, healthcare, food, water, social security, [and] 
education […]. Th e protection and enforcement of these rights would constitute 
substantive justice’.26

It is evident that violations of economic and social rights have been ignored or 
sidelined within transitional justice as they are not viewed as a legitimate concern for 
prosecutorial justice or are deemed too diffi  cult an issue for criminal accountability. 
Rather they can be viewed as an element of social justice which has been excluded 
from the fi eld. Th e dependency of transitional justice on criminal justice models 
has also been critiqued in terms of a general lack of eff ectiveness. Bell notes, ‘the 
demands of communities do not start and end with the punishment of individuals 
[…] mechanisms for dealing with the past respond also to demands for truth which 
cannot be delivered by traditional criminal models’.27

24 Arbour (n 10).
25 See A. Sen, Th e Idea of Justice (Penguin 2009); J. Rawls, A Th eory of Justice (Belknap Press 1971 

Reprint 2005); M. Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ 
(2003) 9(2–3) Feminist Economics 33; and K. Kallen, Social Inequality and Social Injustice – A 
Human Rights Perspective (Palgrave Macmillan 2004).

26 J. Williams, ‘Poverty: A Human Rights Violation in Post-Apartheid South Africa’ in T. Pogge (ed), 
Freedom from Poverty as a Human Right – Th eory and Politics (Vol.2) (UNESCO 2010) 321, 345.

27 C. Bell, Peace Agreements and Human Rights (Oxford University Press 2000) 289.



Amanda Cahill-Ripley

190 Intersentia

2.4. ECONOMIC AND SOCIAL RIGHTS AS BACKGROUND 
INFORMATION

Th e overwhelming focus on notions of criminal justice coupled with the argument 
that socio-economic rights are not legal justiciable rights has resulted in an omission 
of these rights from the traditional remit of prosecutorial justice. However, how have 
restorative justice mechanisms such as truth commissions dealt with economic and 
social rights? It is fi rst important to consider what the purpose of a truth commission 
is. Olsen states that a truth commission should ‘attempt to bring justice by working 
toward a new inclusive society that addresses the fundamental needs of the 
population’.28 Th ere is a clear development in remit from prosecutorial justice in that a 
truth commission should attempt to look to the future, not just deal with past abuses 
in isolation (if this is indeed possible). However, how can the ‘fundamental needs of 
the population’ be addressed without addressing economic and social needs (rights) as 
well as civil and political rights? Attempting to address violations of civil and political 
rights without addressing related violations of economic and social rights undermines 
the indivisibility of human rights and does not take into account their interdependence. 
For example, if someone has been forcibly displaced, their home burnt down and their 
access to food denied and they subsequently die from starvation and exposure, this 
would constitute a violation not just of the right to life but also the rights to food, 
housing and health. Moreover, the failure to address violations of economic and social 
rights impacts upon the remedy for violations of civil and political rights. For instance, 
if someone has been subjected to inhumane treatment and is off ered rehabilitation as 
one form of reparation this will be of limited eff ect if they have no home or no long 
term sustainable means to support themselves to enjoy an adequate standard of living. 
Th erefore, for a truth commission to fulfi l this wider mandate it will need to consider 
economic and social rights as well as civil and political rights.

Evidence to date suggests that traditionally truth commissions have also limited 
their consideration of human rights abuses to violations of civil and political rights.29 
Where truth and reconciliation commissions have considered socio-economic rights 
they have tended to consider them as evidence of the wider context of the confl ict.30 
Deliberate and direct grave violations have been presented as secondary information, 
either as supporting evidence of wider conditions of confl ict-induced poverty or as 
background information to explain the context in which civil and political rights’ 
violations have taken place. Exceptionally, a very small number of truth commissions 
have attempted to address socio-economic rights in a limited manner noting for 
example that they can be causal factors of confl ict. Th ese few cases are examined 

28 Olsen et al (n 11) 12. See also International Council on Human Rights Policy, ‘Aim of a Truth 
Commission’, (n 1) 80.

29 Lisa Laplante, ‘On the Indivisibility of Rights: Truth Commissions, Reparations and the Right to 
Development’ (2007) 10 Yale Human Rights and Development Law Journal 141, 142.

30 Sharp (n 17) 793–794.



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 191

shortly but an illustrative example can be seen in the case of South Africa, where 
economic and social problems have been a major consequence of the apartheid 
system.31 During the mandate of the South African Truth and Reconciliation 
Commission (SATRC) violations of economic and social rights were seen purely as 
contextual information for narrowly defi ned gross human rights violations.32 Hence, 
these violations remained in the background of the SATRC rather than being a central 
concern of the body.

2.5. THE NATURE AND SCOPE OF ECONOMIC AND SOCIAL 
RIGHTS VIOLATIONS

Th e idea of economic and social rights as contextual information can be seen as closely 
linked to the problematic issue of dealing with transition in countries which prior to 
the confl ict had pre-existing violations of economic and social rights or, at the very 
least economic and social conditions which threatened the enjoyment of such rights 
by sectors of society (due to discrimination and inequality). Whilst in some cases it 
will be easy to identify specifi c acts of violence against individuals and communities 
that constitute grave violations of economic and social rights, in other cases these 
violations will be a result of structural and endemic violence and repression by the 
State, for example the former apartheid system in South Africa.

Th is raises the question of whether transitional justice should include consideration 
of historical injustices within a State or consider only limited episodes of violence.33 If 
the latter is true this may have an impact on economic and social rights violations that 
are a result of structural violence and structural injustices that pre-date the confl ict or 
which may have helped instigate it.34 Structural violence exists when the structures of 
the State support the unequal distribution of power (and agency) which is reinforced 
through unequal distribution of resources.35 Th us structural violence based upon this 
‘unequal distribution of power then systematically disadvantages those who do not 
hold as much if any power at all’.36 Examples of such structural violence can include 
racial inequality, poverty and institutionalised discrimination. Moreover, the link 
between structural violence and violations of economic and social rights is clear. Ho 
notes that ‘When economic and social structures conspire to limit one’s agency to 

31 Ibid.
32 South African Truth and Reconciliation Commission, Truth and Reconciliation Commission of 

South Africa Report Vol. 5, Chapter 1 Analysis of Gross Violations of Human Rights (South African 
Truth and Reconciliation Commission 1998) 11, para 48.

33 Editorial (n 7) 3.
34 Sharp (n 17) 802.
35 For a defi nition and discussion of the meaning of structural and or institutional and indirect 

violence see J. Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6(3) Journal of Peace Research 
167, 170. See also P. Farmer, Pathologies of Power (University of California Press 2005).

36 K. Ho, ‘Structural Violence as a Human Rights Violation’ (2007) 4(2) Essex Human Rights 
Review 1, 4.



Amanda Cahill-Ripley

192 Intersentia

the extent that fundamental human needs cannot be met then structural violence 
becomes a structural violation of human rights’.37

Th us, the perceived diffi  culty with outlining the scope and nature of socio-
economic rights violations to be considered by transitional justice bodies is a further 
reason why such violations have been sidelined within the discipline. Nevertheless, 
these structural socio-economic violations can cause both frustration and unrest 
which in turn can drive confl ict. If there is no attempt to address these structural 
and societal inequalities then the risk is that confl ict will resurface despite eff orts 
to address more direct violations of economic and social rights within transitional 
justice mechanisms. As such, there is a question to be answered as to how these 
mechanisms can address not only grave violations of such rights that have taken place 
as a deliberate and direct result of the confl ict, but also systematic and structural 
violations of economic and social rights that act as an ongoing source of injustice 
and root cause of the confl ict itself. Laplante notes, ‘presenting socioeconomic root 
causes of confl ict as historical context leaves policy change to the discretion of 
political leaders, while presenting them as rights violations makes redress and reform 
a political imperative’.38

3. WIDER AND DEEPER TRANSITIONAL JUSTICE

As previously stated, in the past, dominant thinking and practice in transitional 
justice has focussed on addressing civil and political rights violations that have 
occurred during the confl ict and measures to deal with the past. Th is can be deemed 
‘traditional’ transitional justice. However, the International Centre for Transitional 
Justice39 provides a more progressive defi nition of transitional justice: ‘Transitional 
justice is a response to systematic or widespread violations of human rights. It seeks 
recognition for the victims and to promote possibilities for peace, reconciliation and 
democracy […]’.40 Th e focus remains on ‘systematic and widespread’ violations of 
human rights, but the nature of violations is not defi ned. As such, in theory it does 
not exclude violations of economic and social rights. Furthermore, the defi nition 
clearly characterises transitional justice as responsive to past events (as in the previous 
defi nition) but also as having a positive role in the future with the phrase: ‘promote 
possibilities for peace, reconciliation and democracy […]’. One could argue that 
clearly transitional justice must include responding to grave violations of economic 
and social rights (as well as civil and political rights violations) that have occurred 
in the past but also that promoting possibilities for peace needs to include measures 

37 Ibid 15.
38 Laplante (n 1) 341.
39 Hereinaft er referred to as ICTJ.
40 International Centre for Transitional Justice (n 12).



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 193

to prevent further violations of economic and social rights, including addressing 
underlying inequality, discrimination and poverty.

Boraine has called for a ‘holistic interpretation’ of transitional justice;41 while not 
detracting from criminal justice, this approach ‘off ers a deeper, richer and broader 
vision of justice’.42 McEvoy and McGregor also argue for ‘thicker transitional justice’ 
– a move away from strict legalism to include other aspects of justice necessary 
for transition to peace.43 Consequently, a broader and more holistic defi nition of 
transitional justice can be envisaged, which would include traditional mechanisms 
with a mandate to investigate and seek remedy for grave violations of both economic 
and social rights and civil and political rights. Th is would bring economic and social 
rights fi rmly to the foreground of traditional mechanisms and would constitute the 
fi rst step in the development of a wider and deeper remit for transitional justice.

Furthermore, wider and deeper transitional justice should be considered an 
integral element of peacebuilding. Such transitional justice might encompass measures 
(some of which may have previously been seen as a concern for peacebuilding) that 
are less legalistic and look to the future as well as deal with the past. Th ese could 
include, for example, recommendations for legal reforms and protections such as bills 
of rights and other constitutional guarantees,44 as well as a rights-based approach 
to development,45 institutional reform46 and institution building, including the 
establishment of new institutions to monitor economic and social rights such as a 
national human rights institution.47 Such an approach to transitional justice has 
been seen as ‘shift ing the paradigm’ from one of transition to one of transformation 
(transformative justice).48

Conversely, this wider and deeper approach to transitional justice has been 
challenged. Waldorf notes that whilst transitional justice is struggling to deliver on 
its ‘original promises of truth, justice and reconciliation’ more demands are being 

41 Boraine (n 8).
42 Ibid 18.
43 K. McEvoy and L. McGregor, (eds), Transitional Justice From Below: Grassroots Activism and the 

Struggle for Change (Hart 2008).
44 OHCHR (n 1) para.63.
45 McEvoy and McGregor (n 44) 33–37; See also P. De Greiff  and R. Duthie (eds), Transitional Justice 

and Development – Making Connections (Social Science Research Council 2009); R. Mani, ‘Editorial 
– Dilemmas of Expanding Transitional Justice, or Forging the Nexus between Transitional Justice 
and Development’ (2008) 2 Th e International Journal of Transitional Justice 253.

46 C. Sandoval Villalba, Transitional Justice: Key Concepts, Processes and Challenges, Institute for 
Democracy and Confl ict Resolution Briefi ng Paper (IDCR-BP-07/11) (IDCR/University of Essex 
2011). See also Offi  ce of the High Commissioner for Human Rights, Rule of Law Tools for Post-
Confl ict States: Truth Commissions, (United Nations 2006).

47 See A. Cahill-Ripley, From Peace Agreements to Post-Confl ict Reconstruction: Economic and Social 
Rights and Peacebuilding (forthcoming article, on fi le with author).

48 See Sharp (n 17) 804. See also M. Evans, ‘Land, socio-economic rights and transformative justice’, 
Paper presented at Land Divided: Land and South African Society in 2013, in Comparative Perspective 
conference (University of Cape Town, 24–27 March 2013).



Amanda Cahill-Ripley

194 Intersentia

placed on it.49 Moreover, Mani states that it is diffi  cult to see how remedy for such 
broadly encountered social injustice could be incorporated into ‘targeted’ transitional 
justice measures.50 Waldorf argues that despite increasing calls for a broadening of 
the remit for transitional justice, it should be ‘short-term, legalistic and corrective’ 
and, as such, should focus on gross violations of civil and political rights alone.51 
Practical diffi  culties, he notes, include infl ating public expectations of transitional 
justice mechanisms, the existing limited fi nancial capacity of mechanisms and the 
long-term nature of dealing with economic and social rights violations. However, it 
is argued that the limited fi nancial capacity of any transitional justice mechanism is 
relevant to investigation and remedy of any human rights violations whether civil 
and political rights or economic and social rights. For example, it may take many 
years for a functioning tribunal to bring war criminals to justice whether they have 
committed grave violations of civil and political rights or economic and social rights. 
In terms of fi nancial costs of reparations programmes, a reparations programme 
for individual victims of torture may cost just as much as communal reparations 
to provide adequate housing. Th e decision as to how best to limit the capacity and 
funding of a transitional justice mechanism should be based upon the nature and 
scope of the violations encountered as well as ‘a careful analysis of the drivers of 
confl ict’, not on an arbitrary distinction between civil and political rights violations 
and socio-economic rights violations.52 Questions of time, money and expertise are 
relevant for all human rights considerations. Further, as Schmid notes, the challenges 
of competing demands, resource constraints and high expectations are not unique 
to the inclusion of economic and social rights within transitional justice but are 
challenges encountered more widely in the entire process of peacebuilding within 
post-confl ict reconstruction of a State.53

Waldorf argues that the remedy for violations of economic and social rights should 
be a matter for ‘democratic politics and distributive justice’.54 However, this view of 
economic and social rights perceives them not as legal entitlements but as social aims 
or policy goals and supports the view previously presented that such rights have been 
ignored precisely because they are not conceived of as legal rights. Th is illustrates a 
fundamental misunderstanding of what economic and social rights are. Economic and 
social rights cannot be equated with development or broad economic policies. Th ey 
are discrete and justicable legal entitlements with a legally defi ned scope, normative 
content and correlative obligations.55

49 Waldorf (n 1) 172.
50 R. Mani (n 45) 255.
51 Waldorf (n 1) 179.
52 Sharp (n 17) 805.
53 Schmid (n 5) 17–18.
54 Waldorf (n 1) 179; Schmid (n 5) 17–18.
55 Th ere are many sources which provide for economic, social and cultural rights within international 

human rights law, constitutional provisions and national legislation. However, the main 



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 195

Moreover, Waldorf ignores the fact that violations of such rights are oft en a result 
of deliberate violent acts carried out during confl ict seeming to suggest instead that 
socio-economic rights violations are solely due to poverty and/or inequality. Th is is 
clearly not the case. Many direct and deliberate violations of economic and social 
rights take place within confl ict as noted previously. Furthermore, even if certain 
violations of economic and social rights are a result of inequality and discrimination, 
this is likely to have been exacerbated by the confl ict and needs to be addressed. Both 
structural violations of economic and social rights and direct violations of economic 
and social rights are human rights violations – they are not simply ‘under development’ 
as suggested. Moreover, he argues that the ‘reduction of longstanding inequality is 
necessarily post-transitional’56 but it is not clear when the transitional period ends 
and the post-transitional period begins. If, as Waldorf seems to suggest, inequality is 
left  unchecked whilst in transition, it is diffi  cult to see how this would contribute to 
the goal of justice. Without tackling inequality there can only be partial or limited 
justice and the seeds of future confl ict remain. As Sharp argues, transitional justice 
cannot be just and meaningful if a ‘signifi cant portion of the drivers of confl ict and 
resulting violations of international law are pushed to the side’.57 Waldorf argues that 
to include economic and social rights within the remit of transitional justice is casting 
the net too wide.58 However, the argument that diversifying the remit of transitional 
justice results in a weakening of these mechanisms is not borne out in practice. In 
fact, the opposite may be true. Carranza argues that the effi  cacy of these mechanisms 
is actually enhanced by the inclusion of economic and social rights as the process is 
more holistic and with less room for gaps in addressing the needs of the population.59

Another challenge to the inclusion of economic and social rights within 
transitional processes is the implicit assumption that if we include these rights then 
we ‘dilute’ the seriousness of grave violations of civil and political rights, that is, by 
recognising violations of economic and social rights it would somehow diminish the 
gravity of mass violations and severe crimes such as genocide. Th is assumption may 
be based on the historical view of economic and social rights as secondary rights of 
a lesser importance or not real rights, as mentioned previously. It is not suggested, 
for example, that lack of housing due to confl ict can be equated with genocide. 
However, starving people to death through deliberate blocking of food aid as seen 
in Zimbabwe,60 or forced displacement as experienced in Timor-Leste,61 can be as 

international instrument is the UN International Covenant on Economic, Social and Cultural 
Rights (adopted 16 Dec 1966, entered into force 3 Jan 1976) 993 UNTS 14531 (ICESCR).

56 Waldorf (n 1) 179.
57 Sharp (n 17) 805.
58 Waldorf (n 1) 179.
59 Carranza (n 18) 322.
60 Rhoda Howard-Hassmann, ‘Mugabe’s Zimbabwe, 2000–2009: Massive Human Rights Violations 

and the Failure to Protect’ (2010) 32(4) Human Rights Quarterly 898.
61 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Forced Displacement and 

Famine, National Public Hearing, 28–29 July 2003 (CAVR 2005).



Amanda Cahill-Ripley

196 Intersentia

severe as crimes against humanity or war crimes of direct violence. Moreover, they 
may constitute such crimes in and of themselves.62 It is evident therefore that in the 
fi rst instance transitional justice mechanisms need to recognise that gross violations 
of human rights include severe and systematic violations of economic and social 
rights63 and that such bodies establish a mandate for dealing with such violations. In 
addition, transitional justice mechanisms also need to recognise that some economic 
and social rights violations may be the result of more structural violence endemic in 
the State and/or region.

4. EXPERIENCES TO DATE – WHAT CAN WE LEARN 
FROM PAST PRACTICE?

Within academia researchers have begun to explore a broader mandate for 
transitional justice;64 some authors have considered the role of ‘economic crimes’,65 
others the link between transitional justice and development.66 In practice, 
however, States in transition from confl ict or repression continue to choose criminal 
prosecutions and truth commissions as the primary methods for seeking justice for 
human rights abuses.67 Th erefore, the fi rst step to foregrounding economic and 
social rights within transitional justice is for these violations to be considered as 
genuine breaches of the relevant law68 and as legitimate concerns for traditional 
mechanisms, both prosecutorial and restorative. It is therefore important to 
examine the past practice of both prosecutorial justice mechanisms and restorative 
justice mechanisms to assess how they have dealt with economic and social rights 
violations and to draw upon any examples of good practice for future integration of 
such rights within these processes.

62 See L. van den Herik, ‘Economic, Social and Cultural Rights – International Criminal Law’s Blind 
Spot’ (2013) Grotius Centre Working Paper 2013/002-ICL (University of Leiden 2013).

63 Offi  ce of the High Commissioner for Human Rights, Commission On Human Rights, Study 
concerning the right to restitution, compensation and rehabilitation for victims of gross violations 
of human rights and fundamental freedoms, Final report submitted by Mr. Th eo van Boven, Special 
Rapporteur (2 July 1993) E/CN.4/Sub.2/1993/8 para 12 notes that gross violations of human rights 
‘frequently eff ect’ economic, social and cultural rights.

64 I. Muvingi, ‘Sitting on Powder Kegs: Socioeconomic Rights in Transitional Societies’ (2009) 3 
International Journal of Transitional Justice 163; Waldorf (n 1); Arbour (n 10).

65 Z. Miller, ‘Eff ects of Indivisibility: In Search of the “Economic” in Transitional Justice’ (2008) 2 
International Journal Transitional Justice 266; Carranza (n 18).

66 For example see De Greiff  and Duthie (n 45); Mani (n 45); and Laplante (n 29) 141–177.
67 See Editorial (n 7) 1.
68 Whether deemed a crime or a human rights violation under International human rights law, 

international criminal law, international humanitarian law, refugee law and relevant domestic 
provisions.



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 197

4.1. PROSECUTORIAL FORMS OF JUSTICE AND ECONOMIC AND 
SOCIAL RIGHTS

Th e focus of prosecutorial forms of transitional justice within international law has 
been on mechanisms based upon the framework of international criminal law.69 Th ese 
measures usually take the form of an international court such as the International 
Criminal Court (ICC) or a tribunal set up for a specifi c State / confl ict such as the 
International Criminal Tribunal for the Former Yugoslavia (ICTY). Although the legal 
basis for such courts and tribunals includes provisions which can be applied to violations 
of economic and social rights it is evident that in the majority of these processes there has 
been little or no consideration of such rights violations as a part of wider gross human 
rights violations or as crimes in their own right. When considering the law there are 
clearly international criminal law provisions which could apply to such gross violations 
of socio-economic rights,70 but very little attention has been given to exploring the 
potential or limitations of this area of the law to deal with such violations.71

Th e Offi  ce of the High Commissioner for Human Rights’ Analytical study on 
human rights and transitional justice states that ‘International criminal tribunals 
have investigated and prosecuted cases of violations of economic, social and cultural 
rights, stating that, the ICTY has recognized that the widespread destruction of 
homes and property may constitute a crime against humanity’.72 Furthermore, they 
note the case of Prosecutor v. Kupreskic et al.,73 where the Trial Chamber found that

[…] attacks on property can constitute persecution. […] comprehensive destruction of 
homes and property. Such an attack on property in fact constitutes a destruction of the 
livelihood of a certain population. Th is may have the same inhumane consequences as a 
forced transfer or deportation. Moreover, the burning of a residential property may oft en 
be committed with recklessness towards the lives of its inhabitants. Th e Trial Chamber 
therefore concludes that this act may constitute a gross or blatant denial of fundamental 
human rights, and, if committed on discriminatory grounds, it may constitute 
persecution.74

69 In this instance I do not discuss other mechanisms such as national courts established for 
transitional justice purposes.

70 For example, under the International Criminal Court Rome Statute, Art 8 (2) (b) (xxv) starvation 
as a weapon of war is a specifi c crime, however to date no one has been indicted on this charge. 
Other possible provisions include ICC Rome Statute, Article  7 (1) (b) Crime against humanity 
of extermination; Article  7 (1) (h) Crime against humanity of persecution, Article  8 (2) (a) (iii) 
War crime of wilfully causing great suff ering; Article  8 (2) (a) (iv) War crime of destruction and 
appropriation of property; Article 8 (2) (b) (ii) War crime of attacking civilian objects; ICC Rome 
Statute, Article  6(c) by deliberately infl icting conditions of life calculated to bring about physical 
destruction.

71 Van den Herik (n 62).
72 Offi  ce of the High Commissioner for Human Rights (n 2) para.61.
73 Prosecutor v Kupreskic et al (Judgment) ICTY, IT-95–16-T (14 January 2000) paras 628–631.
74 Ibid para. 631. See also Prosecutor v Stanislav Galić (Judgment) ICTY, IT-98–29-T (5  December 

2003) para.42 and Prosecutor v Blaskić (Judgment) ICTY, IT-95–14-T (3 March 2000) where damage 



Amanda Cahill-Ripley

198 Intersentia

However, despite this acknowledgement that economic and social rights violations 
can constitute crimes under international criminal law, these violations are not 
explicitly recognised as violations of economic and social rights. Rather, ‘the broad 
crime defi nitions of persecution and crimes against humanity off er some leeway to 
“import” socio-economic human rights notions’75 into a criminal law framework. 
Although this illustrates a positive development in that such violations are explicitly 
addressed as possible of constituting gross violations of human rights under 
international criminal law, it remains disappointing that the explicit identifi cation of 
such crimes as economic and social rights violations remains an omission. As van den 
Herik notes ‘there is no direct criminalisation of socio-economic rights, but rather a 
pronounced appreciation of the socio-economic dimensions of crimes’.76

It is also the case that in other trials at the ICTY, despite evidence of severe 
economic and social rights violations, these acts were relegated to the role of 
background contextual information for civil and political rights violations as 
constitutive of international crimes. For example, in Prosecutor v. Dragomir 
Milošević,77 the Trial Chamber held that the siege of Sarajevo was ‘characterised 
by a persistent attack or campaign over a period of fourteen months, during which 
the civilian population was denied regular access to food, water, medicine and 
other essential supplies, and deprived of its right to leave the city freely at its own 
will and pace’.78 However, the trial did not note any violations of economic and 
social rights as an element of either crimes against humanity or unlawful attacks 
against civilians. More generally, the deliberate starvation of civilians and burning 
and destruction of homes was widely documented as evidence to form a picture of 
the wider context in which violations of personal integrity rights took place. Th ese 
violations of economic and social rights have not been acknowledged as such nor 
has anyone been indicted for these violations as constituting an element of a crime 
against humanity or a war crime.79

Likewise, the ICC has not explicitly referred to economic and social rights 
violations as elements of relevant crimes despite evidence and indictments noting 
what amounts to severe violations of such rights. For example, in the fi rst warrant 

to civilian property was seen as an element of an attack on Civilians as a Violation of the Laws or 
Customs of War as set forth in Article  51 of Additional Protocol I and Article  13 of Additional 
Protocol II to the Geneva Conventions of 1949) punishable under Article  3 of the Statute of the 
Tribunal.

75 Van den Herik (n 62) 8.
76 Ibid.
77 Prosecutor v Dragomir Milošević (Judgment) International Criminal Tribunal for the Former 

Yugoslavia (ICTY) IT-98–29/1-T (12 December 2007).
78 Ibid para 751.
79 Th ere is no specifi c provision under ICTY for a crime of starvation as weapon of war as there is in 

the Rome Statute of the International Criminal Court 1998 Art 8 ICC Art 8 (2)(b)xxv. However the 
defi nition of crimes against humanity could encompass deliberate starvation.



Foregrounding Socio-Economic Rights in Transitional Justice

Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 199

of arrest in Prosecutor v. Omar Hassan Ahmad Al Bashir (Omar Al Bashir),80 the 
Prosecution submits that

GoS (Government of Sudan) forces systematically destroyed the means of survival – 
including food, shelter, crops, livestock and, in particular, wells and water pumps – of the 
Fur, Masalit and Zaghawa civilian population in Darfur because “[t]he aim was to ensure 
that those inhabitants not killed outright would be unable to survive without assistance”.81 
In this regard, the Prosecution submits that: Given Darfur’s hostile desert environment 
and lack of infrastructure, livelihood strategies historically have centred on the village. It is 
diffi  cult to survive outside the communal setting. As an example, ensuring adequate access 
to water has long been an essential component of livelihood strategies. To facilitate access 
to water by both humans and animals, many villagers dug communal wells or maintained 
other communal water sources. Militia/Janjaweed and the Armed Forces repeatedly 
destroyed, polluted or poisoned these wells so as to deprive the villagers of water needed 
for survival. In a number of cases, water installations were bombed.82

Th is can clearly be viewed as a severe violation of the rights to food, water and 
housing as well as constituting elements of crimes against humanity,83 and war 
crimes.84 Skogly argues that crimes against humanity should include severe 
violations of economic and social rights.85 Further examples of such economic 
and social rights violations include deliberate blockage of food aid86 as seen in the 

80 Prosecutor v Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”) (International Criminal Court Pre-
Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar 
Hassan Ahmad Al Bashir) ICC-02/05–01/09 (4 March 2009).

81 Th e Prosecution Application, para 175(Footnote in original document).
82 Prosecutor v Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”) (International Criminal Court Pre-

Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar 
Hassan Ahmad Al Bashir) ICC-02/05–01/09 (4 March 2009) para 91. Original footnote omitted. See 
also para 93.However, it was also noted that ‘there are no reasonable grounds to believe that such a 
contamination was a core feature of their attacks,’ 32.

83 In particular, Rome Statute of the ICC, Th e Elements of Crimes, (reproduced from the Offi  cial 
Records of the Assembly of States Parties to the Rome Statute of the International Criminal 
Court, First session, New York, 3–10  September 2002, 6, Article  7(1)(b) Crime against humanity 
of extermination; Elements ‘1. Th e perpetrator killed one or more persons, including by infl icting 
conditions of life calculated to bring about the destruction of part of a population,’ directly or 
indirectly and including through depriving access to food and medicines and Article 7(1)(h) Crime 
against humanity of persecution, Elements, ‘1. Th e perpetrator severely deprived, contrary to 
international law, one or more persons of fundamental rights.’

84 Specifi cally Rome Statute of the ICC Article  8(2)(a)(iii) War crime of wilfully causing great 
suff ering; Article 8(2)(a)(iv) War crime of destruction and appropriation of property (ICC Elements 
of Crimes page 15); Article  8(2)(b)(ii) War crime of attacking civilian objects (ICC Elements of 
Crimes, page  18) and Article  8(2)(b)(xxv) War crime of starvation as a method of warfare (ICC 
Elements of Crimes, page 31).

85 S.I. Skogly, ‘Crimes Against Humanity – Revisited: Is Th ere a Role for Economic and Social Rights?’ 
(2001) 5(1) Th e International Journal of Human Rights 58, 59.

86 Ibid 69–70.



Amanda Cahill-Ripley

200 Intersentia

Sudan87 or deliberate State-induced famine as seen in Zimbabwe.88 Th e President of 
Zimbabwe, Robert Mugabe, deliberately denied international agencies permission 
to bring food into Zimbabwe to feed the starving. Despite unprecedented food 
shortages he distributed State-owned grain to his supporters whilst withholding it 
from opposition supporters.89 Th us, in the period from 2000 to 2009, the policies 
of the Zimbabwean government can be considered as State-induced famine and as 
such constitute a crime against humanity under international criminal law.90 Th eir 
actions can also be viewed as deliberate violations of the right to food, health and 
housing. Yet, Mugabe has never been indicted for these crimes at the ICC, despite 
calls for his indictment.91

It is also the case that gross violations of economic and social rights can constitute 
genocide.92 For example, in the second warrant of arrest Prosecutor v Omar Hassan 
Ahmad Al Bashir, Bashir has been indicted on the count of genocide by deliberately 
infl icting conditions of life calculated to bring about physical destruction, within the 
meaning of article 6(c) of the Statute. Th is includes

[…] reasonable grounds to believe that in furtherance of the genocidal policy, as part of the 
GoS’s unlawful attack on the above-mentioned part of the civilian population of Darfur 
and with knowledge of such attack, GoS forces throughout the Darfur region (i) at times, 
contaminated the wells and water pumps of the towns and villages primarily inhabited by 
members of the Fur, Masalit and Zaghawa groups that they attacked.93

Clearly these acts amount to a violation of the right to water as well as the right to life.
Th ese examples illustrate the marginalisation of economic and social rights 

violations within prosecutorial transitional justice mechanisms and more broadly 
within international criminal law. Van den Herik argues that international criminal 
law has the potential to capture such large-scale and deliberate socio-economic rights 
violations but that the ‘rigid legal requirements’ of criminal law results in a marginal 
role for international criminal processes in addressing such violations. For example, 
the focus upon commission of acts rather than omission and the strict defi nition of 

87 A. de Waal, Famine Crimes: Politics and the Disaster Relief Industry in Africa (Th e International 
African Institute, in association with James Currey, Oxford and Indiana University Press 1997).

88 Howard-Hassmann (n 60).
89 Ibid 901; 908.
90 Rome Statute of the ICC, Art 7(1)(k).
91 Howard-Hassmann (n 60) 907.
92 Rome Statute of the ICC, Article 6(c) by deliberately infl icting conditions of life calculated to bring 

about physical destruction.
93 Prosecutor v Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”) (Second Warrant of Arrest against 

Omar Hassan Ahmad Al Bashir) ICC-02/05–01/09 (12  July 2010) 7. See also footnote in original, 
Physicians for Human Rights, Report, Darfur Assault on Survival, A call for Security, Justice, and 
Restitution (Anx J44) DAR-OTP-0119–0635 at 0679 which mentions three incidents of destruction 
of water sources).



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 201

crimes and legality principle of the ICC94 leave ‘less space for direct recourse to human 
rights in the realm of substantive criminal law’.95 However, despite these diffi  culties 
there are, as illustrated, provisions that can accommodate such violations. It is clear 
that systematic and large scale abuse of such rights can meet the threshold required 
to constitute a crime against humanity, war crimes or even genocide. Furthermore, to 
limit such crimes to violations of civil and political rights ‘is an arbitrary limitation 
that should be challenged’.96 Violations of economic and social rights that are of a 
severe nature and can be considered under the relevant international criminal law 
should be the subject of established prosecutorial mechanisms such as international 
courts and tribunals, just as gross violations of civil and political rights are. Such 
international courts and tribunals clearly have the capacity to consider economic and 
social rights violations within existing international criminal law and international 
humanitarian law, helping to increase the visibility of socio-economic abuses.97 As 
Schmid argues, there are no legal obstacles in doing so.98

4.2. RESTORATIVE JUSTICE AND ECONOMIC AND SOCIAL 
RIGHTS (TRUTH AND RECONCILIATION COMMISSIONS)

If violations of economic and social rights do not reach the threshold required 
by international criminal law to be considered under the above noted provisions 
there is a need for mechanisms to address violations of a less severe nature. A truth 
commission, for example, can incorporate within their mandate international 
human rights standards that do not necessarily require such a high threshold to 
be reached before violations can be considered. With this in mind it may be that 
restorative justice mechanisms are more appropriate in certain cases for dealing with 
economic and social rights violations as they can encompass severe and systematic 
violations of economic and social rights but also those of a lesser gravity.99 Further, 
they are not subject to the same strict legal modalities of international criminal 
law. In terms of assessing and examining previous practice, however, there are few 
examples of truth commissions who have fully engaged with economic and social 
rights. As stated above, exceptionally a small number have addressed such rights 
in a limited and incomplete manner. Accordingly, this paper will focus upon the 
limited cases where the commission have engaged in some way with economic and 
social rights or have encountered such rights violations as a signifi cant element of 
the confl ict.

94 Rome Statute of the ICC, Article 22(2). See also Art 21(3).
95 Van den Herik (n 62) 5.
96 Skogly (n 85) 74.
97 Van den Herik (n 62) 18.
98 E. Schmid, ‘War Crimes Related to Violations of Economic, Social and Cultural Rights’ (2011) 71(3) 

Heidelberg Journal of International Law 523, 540.
99 Offi  ce of the High Commissioner for Human Rights (n 1) para 60.



Amanda Cahill-Ripley

202 Intersentia

4.2.1. South Africa

Th e South African Truth and Reconciliation Commission is probably the most well-
known and researched truth and reconciliation commission in the world. However, 
very little attention has been given to analysing how it dealt with economic and 
social rights within the transitional justice process. Th e Commission was limited in 
its mandate by the defi nition of gross human rights violations provided for in the 
founding legislation which stated,

“gross violation of human rights” means the violation of human rights through – (a) 
the killing, abduction, torture or severe ill treatment of any person; or (b) any attempt, 
conspiracy, incitement, instigation, command or procurement to commit an act referred 
to in paragraph (a), which emanated from confl icts of the past and which was committed 
during the period 1 March 1960 to 10 May 1994 within or outside the Republic, and the 
commission of which was advised, planned, directed, commanded or ordered, by any 
person acting with a political motive.100

Th is defi nition limited the attention of the Commission to events which emanated 
from the confl icts of the past, rather than from the policies of apartheid.101 Whilst it 
is understandable that the Commission felt it could not undertake responsibility for 
investigating the entire and extensive aff ects of apartheid, this does not mean that 
deliberate and gross violations of socio-economic rights could not have been deemed 
‘severe ill treatment’ under the existing mandate. Furthermore, the narrow defi nition 
of human rights violations was not in line with public expectations of the Commission, 
which was asked to investigate forced evictions and displacement and discrimination 
in education, work and other economic and social rights violations, especially those 
faced by women. Th e Commission did hold ‘Institutional and Special Hearings’ 
relating to inter alia business, the healthcare system and women.102 Th ese hearings 
noted the structural violence and associated violations as a result of the apartheid 
system. However, it is disappointing that in its fi nal report the Commission noted that 
‘these issues formed part of the broader context within which the specifi cally defi ned 
gross human rights violations had taken place’.103 Th us, economic and social rights 
violations were positioned fi rmly in the background, as contextual information. 

100 (South Africa) Promotion Of National Unity And Reconciliation Act 34 of 1995, section 1(1)(ix) 
[defi nition of ‘gross violation of human rights’ amended by s. 21 (a) of act 104 of 1996]. See also 
South African Truth and Reconciliation Commission, Truth and Reconciliation Commission of 
South Africa Report 1998, Vol.1 Chapter 4, Defi ning Gross Violations Of Human Rights (South 
African Truth and Reconciliation Commission 1998) 70–78, paras 82–90.

101 South African Truth and Reconciliation Commission (n 32) para 48.
102 South African Truth and Reconciliation Commission, Truth and Reconciliation Commission 

of South Africa Report 1998, Vol. 4 Institutional and Special Hearings (South African Truth and 
Reconciliation Commission 1998).

103 South African Truth and Reconciliation Commission (n 32) paras 48 and 49.



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Netherlands Quarterly of Human Rights, Vol. 32/2 (2014) 203

Individuals who were a subject of these violations were excluded from recognition as 
victims and from reparations.104

4.2.2. Liberia

Th e Republic of Liberia Truth and Reconciliation Commission had a broad mandate 
to address all gross violations of human rights, including an explicit reference to 
economic and social rights but this was qualifi ed by a statement linking these violations 
to ‘economic crimes’.105 Although the Commission recognised that such violations 
were a major root cause of the confl ict, noting that poverty, corruption, limited access 
to education, economic, social, civil and political inequalities and land tenure and 
distribution, were all contributing factors,106 the Commission failed to translate 
this recognition of economic and social rights violations into a primary concern for 
the truth and reconciliation commission. As Schmid notes there is a signifi cant gap 
between the fi ndings of the Commission in relation to the causes of confl ict and the 
legal analysis of abuses committed.107 Th e focus instead was on economic crimes – that 
is on crimes related to corruption that had economic impacts rather than on a rights-
based analysis of violations. Th is raises the issue of the diff erences between economic 
and social rights violations and the concept of economic crimes. In some cases they 
have been treated as synonymous with one another, however, it is argued that this 
is not the case. Sharp refers to the concept of ‘economic violence’ but acknowledges 
that this is a broader concept than purely violations of economic and social rights 
also including corruption and plunder of natural resources within the defi nition.108 
Although the latter have also been sidelined within transitional justice it is important 
to diff erentiate between economic and social rights violations under international law 
and the wider crimes which can lead to such violations.109

4.2.3. Sierra Leone

Similarly, the Sierra Leone Truth and Reconciliation Commission had a mandate to 
consider ‘Violations of economic, social and cultural rights as well as of civil and 

104 Ibid.
105 Republic Of Liberia Truth and Reconciliation Commission, Final Report Volume One Preliminary 

Findings and Determinations (Th e Truth and Reconciliation Commission of Liberia 2008) 
Section ii, 23.

106 Ibid 4, note.2. For the Commission’s defi nition of economic crimes and further discussion see 
Republic Of Liberia Truth and Reconciliation Commission Final Report Volume Th ree: Appendices, 
Title III: Economic Crimes and the Confl ict, Exploitation and Abuse (Th e Truth and Reconciliation 
Commission of Liberia 2009) 2, para 8.

107 Schmid (n 5) 6.
108 Sharp (n 17) 782.
109 Ibid 785. Further research is required on the relationship between economic crimes such as 

corruption and ESR. Notable publications include Carranza (n 18); and Schmid (n 5) 19.



Amanda Cahill-Ripley

204 Intersentia

political rights, as well as other categories of rights such as the right to development 
and the right to peace’.110 Th e report acknowledges that,

In any event, human rights violations and abuses will oft en have both civil or political, 
and economic, social and cultural dimensions. […] Indeed, although wartime atrocities 
usually involve the “core” human rights, like the right to life and the protection against 
cruel and inhuman treatment, the confl ict in Sierra Leone may also have involved, and 
have been caused by, “violations of such economic and social rights as the right to food, to 
housing and to medical care”.111

In the resulting investigation, the Commission did investigate and report on aspects 
of economic and social rights such as education and health especially in relation to 
children112 and women. In a move to be commended it held a special hearing for 
women and girls. Th e Commission found that women bore the brunt of economic 
and social rights violations such as destruction of property, forced evictions and 
displacement,113 but the legal analysis never explicitly framed these abuses as human 
rights violations (right to housing, food and water for example). In terms of reparations, 
the programme was necessarily limited due to resources. Th e priority entitlement was 
defi ned not by the type of violations suff ered but by identifying the most vulnerable.114 
As such, the Commission prioritised reparations for widows, children and in the areas 
of health, education, pensions and community reparations.115 Despite the fact that the 
reparations programme did address some issues which remedied economic and social 
rights violations116 these reparations were not recognised as remedies for violations of 
such rights and therefore were not framed as legal entitlements. Rather, these issues 
were addressed because they were deemed important policy issues and priorities for 
the identifi ed vulnerable groups.

In sum, the above cases of Liberia and Sierra Leone illustrate that even if economic 
and social rights are explicitly provided for in the mandate and acknowledged as a 
causal factor of the confl ict, it does not necessarily follow that truth and reconciliation 

110 Sierra Leone Truth and Reconciliation Commission, Witness to Truth – Report of the Sierra Leone 
Truth and Reconciliation Commission Vol. 1 (Sierra Leone Truth And Reconciliation Commission 
2004) 38, para 54.

111 Ibid para 52.
112 See Sierra Leone Truth and Reconciliation Commission Witness to Truth – Report of the Sierra 

Leone Truth and Reconciliation Commission Vol. 2, Chapter 2 Findings (Sierra Leone Truth And 
Reconciliation Commission 2004) para 489; para 490.

113 Sierra Leone Truth and Reconciliation Commission, Witness to Truth – Report of the Sierra Leone 
Truth and Reconciliation Commission Vol.3B, Chapter Th ree Women and the Armed Confl ict in 
Sierra Leone (Sierra Leone Truth And Reconciliation Commission 2004) 185, para 386; See also 
Vol.2, Chapter 2 Findings: Women, para 497; para 499.

114 Sierra Leone Truth and Reconciliation Commission (n 112) para 57.
115 Ibid paras 84 and 85.
116 Such as lack of access to land; training and education; See Sierra Leone Truth and Reconciliation 

Commission (n 112) para 499; (n 113) 185 para 499.



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commissions will apply a rights based framework to such violations or highlight them 
as a priority for the said commission.

4.2.4. Timor – Leste (East Timor)

In the case of Th e Commission for Reception, Truth and Reconciliation in Timor-
Leste, (CAVR) the commission also acknowledged and investigated violations 
of economic and social rights violations. Th e Commission’s mandate stated that 
they would enquire into ‘Violations of a broad range of human rights standards’ 
including rights and freedoms within, inter alia, the UN International Covenant on 
Economic, Social and Cultural Rights 1966.117 Th e CAVR was also important in that 
it highlighted and recognised within its mandate the interdependence of rights.118 For 
example, a disappearance constitutes a violation not only of personal integrity rights 
(civil and political rights) but also where a family was economically dependent on the 
disappeared person may violate economic and social rights such as the right to an 
adequate standard of living.119

Th e Commission chose to focus on an examination of the most serious violations 
of fundamental rights and focused in particular on inter alia, ‘Th e range of rights 
relevant to displacement, resettlement and famine (the right to food, freedom from 
hunger, water and adequate housing, freedom of movement, freedom to choose a 
residence)’120 and ‘Social and economic rights’.121 Th e result was an in-depth report 
detailing extensive violations in relation to the rights to food, water, health, housing 
and education.122 Th e deliberate policy of forced displacement led to famine, ‘hunger 
and deprivation of the means of making a livelihood through the destruction of or 

117 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! Th e Report of 
the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR) (Commission for 
Reception, Truth and Reconciliation 31 October 2005) Part 2 – Th e Mandate of the Commission, 
4, para 15. Other sources used include international human rights law but also international 
criminal law (such as crimes against humanity Art 7(2)(b) Rome Statute on extermination through 
deprivation of food) and international humanitarian law (for example, starvation as a weapon of 
war under grave breaches of the laws of war), as well as national law (for example, poisoning of water 
sources under Indonesian law).

118 As did the Sierra Leone Truth and Reconciliation Commission: See Sierra Leone Truth and 
Reconciliation Commission (n 110) 37–38.

119 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n117) para 84, page 18. 
See also the Offi  ce of the United Nations High Commissioner for Human Rights, Fact Sheet 6/Rev.3, 
Enforced or Involuntary Disappearances, Geneva: United Nations, July 2009, 3–4.

120 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n 117) para 16 (3).
121 Ibid para 16 (11). See also paras 86–88, page19 and paras 128–132, pages 26–27.
122 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! Th e Report of 

the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR), Section 7.3 Forced 
Displacement and Famine (Commission for Reception, Truth and Reconciliation 31 October 2005). 
See also CAVR, Forced Displacement and Famine, National Public Hearing, 28–29 July 2003, CAVR, 
2005.



Amanda Cahill-Ripley

206 Intersentia

loss of access to food crops, livestock, housing, agricultural implements and land’.123 
For others it resulted in death. In its detailed report on the fi ndings in relation to 
famine and displacement124 the Commission found that,

Death was caused by famine, famine-related diseases, vulnerability to sickness from 
hunger, fear or exhaustion and a lack of access to medical care. It is likely that more people 
died from the eff ects of displacement than from any other violation, while the actual 
number of deaths is incalculable.125

Unfortunately, despite the severe, systematic and extensive nature of these 
socio-economic rights violations they were not remedied under the reparations 
programme. Rather, the CAVR felt it had pushed the scope of its mandate as far as 
was possible in the circumstances and stopped short of seeking remedy for these 
violations, due to the ‘principles of feasibility and prioritisation based on need’.126 
Th e result was a reparations programme focused upon and limited to victims 
of torture, people with mental and physical disabilities and victims of sexual 
violence.127 However, the reparations programme also identifi ed recipients on the 
basis of vulnerability. Th erefore widows and children were targeted. Th is also meant 
that for some victims of economic and social rights violations reparations of some 
kind were given.128 Th e approach though was not one which prioritised victims of 
economic and social rights violations. Many people who had been made homeless, 
had suff ered starvation, malnutrition and a lack of education were excluded from 
the programme.

What is signifi cant about the transitional justice process in this case was the 
explicit human rights framework applied to the economic and social rights violations. 
In this process these rights violations were framed as such and reference was made 
to international human rights law. Consequently, socio-economic rights violations 
were brought in some way to the foreground of transitional justice concerns, although 
ultimately they were not treated on an equal footing with violations of civil and 
political rights. Despite an explicit and specifi c mandate to investigate economic 
and social rights violations, priority was given in the end to reparations for civil and 
political rights violations. Of course there are many reasons why this might have been 

123 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n 122) Section 7.3.7, 
para 503(5).

124 Ibid.
125 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste (n 122) para 503(4).
126 Th e Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! Th e Report of 

the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR), Recommendations 
Part 11, 12.6 Guiding principles for a reparations programme in Timor-Leste (Commission for 
Reception, Truth and Reconciliation 31 October 2005) 39–41.

127 Ibid.
128 Reparations can take many forms. In this case for example, school fees were paid, access to 

rehabilitation and healthcare was given as well as skills training for women. See Th e Commission 
for Reception, Truth and Reconciliation in Timor-Leste (n 126) 12.12 Methods, pages 43–45.



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the case, not least the capacity of the CAVR to act and enforce any reparations for 
such rights violations. However, as Sharp notes, this served to promote a ‘hierarchy of 
rights’ and granted de facto impunity to those responsible for ‘economic violence’.129 
On a positive note though, the experiences of the CAVR represent a clear development 
in mandate of a truth and reconciliation process regarding investigation and reporting 
of fi ndings of economic and social rights violations.

Overall, the evidence illustrates that truth and reconciliation commissions have 
the potential to address both direct grave violations of economic and social rights 
and more structural ongoing violations of these rights, if they are brought to the 
foreground of the mandate and crucially the focus remains throughout the process. 
Th ere is a need to build upon the past experiences to date. If we look at the experience 
of South Africa today it is evident that the legacy of structural injustice still exists. 
Racial and social divisions remain (although not legally sanctioned), for instance in 
healthcare, education and housing.130 Th is situation remains despite the enshrinement 
of economic and social rights in the South African Constitution and substantial 
jurisprudence concerning socio-economic rights within the constitutional court. 
An interesting and important question to ask is if violations of economic and social 
rights had been brought to the foreground of the SATRC, then would the outcome 
and the impact upon long-term peace and reconciliation in South Africa have been 
any diff erent?

Th e experience of the CAVR in Timor-Leste is arguably a more positive 
development in terms of the recognition of economic and social rights violations 
as genuine crimes with legal standing which can be investigated and examined 
within the main body of work of a truth commission and with eff ective fi ndings. Th e 
CAVR process marks the beginning of foregrounding of such rights, even if not seen 
through to specifi c remedy or reparations. It signifi es a move away from economic 
and social rights violations as background or contextual information. As such, the 
work of the CAVR is to be commended and built upon for the future as an example 
of good practice. In addition, the specialised hearings of the SATRC and the Sierra 
Leone Truth and Reconciliation Commission are useful in drawing attention to the 
structural injustices and endemic economic and social rights violations within a 
regime. Both these methods (and a combination of the two) are markedly useful in 
documenting evidence of economic and social rights violations during confl ict and 
transition.

129 Sharp (n 17) 795.
130 Although black people are ‘free’ to access all services and goods that white people are, economically 

and socially black people remain marginalised. Race and class remain inextricably linked. See 
Wale. K, Confronting Exclusion: Time for Radical Reconciliation, SA Reconciliation Barometer 
Survey: 2013 Report (Institute for Justice and Reconciliation 2013) 7; Bertelsmann Stift ung, BTI 
2014 – South Africa Country Report (Gütersloh: Bertelsmann Stift ung 2014) 14, 23.



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208 Intersentia

5. HOW TO MOVE FORWARD – DEVELOPING 
TRANSITIONAL JUSTICE AND ADDRESSING 
REMAINING CHALLENGES

One of the most diffi  cult challenges facing incorporation of economic and social 
rights within transitional justice mechanisms is how to design and implement a 
meaningful and eff ective reparations programme and the wider question of what 
should be considered remedy. Is the right to be heard remedy enough? As noted 
above reparations for violations of socio-economic rights have been lacking, even 
where transitional justice mechanisms have engaged with such violations as a part 
of their mandate. Th e question of reparations goes beyond the remit of this article. 
Suffi  ce to say that further research is required in this area to explore the nature and 
form of reparations for economic and social rights violations, including the notion 
of community rather than individual reparations; non-fi nancial reparations and the 
relationship between community reparations and the right to development.131

A second and related challenge is which transitional justice mechanism to choose 
and how to delineate boundaries for the scope of the investigation into economic 
and social rights violations. Of course the choice of mechanism and scope of 
investigation will be partly subjective to each transition in question and the drivers 
of that particular confl ict, but these choices have implications for the consideration 
(or not) of such rights violations. Th e choice of mechanism could limit the extent to 
which economic and social rights violations are a part of the mandate. Th e choice 
of mechanism is also signifi cant in relation to the needs of the local population and 
grassroots demands for justice (and peace and reconciliation). Local communities 
oft en feel that international and legalistic transitional justice mechanisms result in 
their exclusion or marginalisation from the process.132 International eff orts are oft en 
led by the agenda of external actors rather than by local priorities for justice. An 
interesting example of local demands for transitional justice in relation to violations 
of economic and social rights can be seen in Colombia, where local communities have 
called for a reparations programme to specifi cally address economic and social rights 

131 L. Magarrell, Reparations in Th eory and Practice, Reparative Justice Series (International Center 
for Transitional Justice 2007) at <http://ictransitionaljustice.org/sites/default/fi les/ICTJ-Global-
Reparations-Practice-2007-English.pdf>; Lisa Laplante (n 29); C. Sandoval Villalba, for Redress, 
Rehabilitation As A Form Of Reparation Under International Law (Th e Redress Trust 2009); 
L. McGregor and C. Sandoval Villalba (eds) Th e Law and Practice of Reparations as a form of 
Rehabilitation (forthcoming 2014); Naomi Roht-Arriaza, Reparations and Economic, Social, and 
Cultural Rights (16 November 2012) available at SSRN: <http://ssrn.com/abstract=2177024>; Th eo 
van Boven, Th e United Nations Basic Principles And Guidelines On Th e Right To A Remedy And 
Reparation For Victims Of Gross Violations Of International Human Rights Law And Serious 
Violations Of International Humanitarian Law (16 Dec 2005) (United Nations Audio Visual Library 
2010) at <http://untreaty.un.org/cod/avl/pdf/ha/ga_60–147/ga_60–147_e.pdf> (last accessed 
17 June 2013).

132 McEvoy and McGregor (n 43).



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violations including the right to social services and land restitution.133 One argument 
for the inclusion of economic and social rights within transitional justice is therefore, 
‘where it refl ects the needs and priorities of victims’.134

When establishing the parameters for economic and social rights violations that 
will be considered as part of the transitional justice process, the question is how does 
one diff erentiate between violations that pre-dated the confl ict and those that are a 
consequence of the confl ict? As noted, it is questionable that this is even possible or 
desirable but certainly direct and deliberate grave violations of economic and social 
rights must be considered. Where possible, existing structural violence in the form of 
socio-economic violations should also be identifi ed and addressed, especially where 
these violations are root causes of confl ict. As Carranza notes ‘gains could be unmade 
if the conditions that led to or aggravated repression and confl ict are left  to fester, 
allowing repression to re-emerge and confl ict to reoccur’.135

Another priority is to recognise the need for inclusion of economic and social 
rights in order to address violations suff ered by women during confl ict and transition. 
Th e lack of engagement with economic and social rights violations continues to have 
negative repercussions for the understanding of the abuses suff ered by women and 
girls during confl ict, as well as underestimating the prevalence of economic and social 
rights violations encountered during confl ict. To illustrate, the SATRC recognised and 
admitted that their limited defi nition of gross human rights violations ‘resulted in a 
blindness to the types of abuse predominantly experienced by women’.136 Commonly 
women and children are disproportionately aff ected by violations of socio-economic 
rights both in peacetime and confl ict and as such transitional justice mechanisms 
need to account for these rights violations if they are to suffi  ciently address justice for 
women.

Moreover, this neglect of the experiences of women and other vulnerable groups 
could result in the transitional justice process actually reasserting the subordination 
of disadvantaged groups that existed before and during the confl ict. Th e chosen 
mechanisms are at risk of echoing previously unjust distributions of economic 
and social rights, for example, where property and land is vested in men, and 
consolidating pre-existing inequalities ‘at personal, social and structural levels’.137 
Where transitional justice procedures do make special provision for women, such as 
the special hearings in South Africa and Sierra Leone, the focus tends to be solely 
on sexual violence rather than on economic and social rights violations aff ecting 

133 N. Summers, ‘Colombia’s Victims’ Law: Transitional Justice in a Time of Violent Confl ict?’ (2012) 
25 Harvard Human Rights Journal 220; C. Diaz, ‘Challenging Impunity from Below: Th e Contested 
Ownership of Transitional Justice in Colombia’ in McEvoy and McGregor (n 43) 189–215.

134 Waldorf (n 1) 175. See also Carranza (n 18) 322.
135 Carranza (n 18) 329.
136 South African Truth and Reconciliation Commission (n 102) 318 and para 144.
137 E. Stanley, ‘Th e Political Economy of Transitional Justice in Timor-Leste’, in McEvoy and McGregor 

(n 40) 167–187, 185.



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210 Intersentia

women. Hearing the accounts of all types of violations endured by women would 
result in a more truthful account of confl ict and reveal underlying gender dimensions 
of confl icts.138 Th erefore the inclusion of economic and social rights concerns within 
transitional justice mechanisms will also contribute to a more holistic and inclusive 
transitional justice process.

Moreover, women are commonly aff ected by land issues during transitions. For 
example, they are oft en excluded from owning land under local custom, which impacts 
upon their ability to seek restitution following displacement.139 Transitional justice 
mechanisms have not adequately considered how to deal with violations related to 
land, such as displacement and destruction of property, resulting in violations of the 
rights to food, health, water, housing and work and in the worst cases loss of life.140 
Th e issue of land sits at the intersection between economic and social rights, civil and 
political rights, international criminal law, international humanitarian law and local 
custom and domestic law. As such, further research, both theoretical and empirical, is 
required as to how best to address land issues in transition.141

As a further issue to explore, an examination and further discussion of how to 
address violations of economic and social rights both within transitional justice 
mechanisms but also in relation to wider peacebuilding is required. Th is will 
necessarily entail examining the broader idea of transitional justice. Where do 
the boundaries lie between transitional justice and peacebuilding?142 Certainly, 
transitional justice is oft en perceived as a pillar or component of peacebuilding 
and  post-confl ict reconciliation.143 What are the aims of transitional justice and 
should a shift  from transitional justice to an inclusive process of transformative 

138 Schmid (n 5) 6 and 16. Further reading on transitional justice and gender see S. Buckly-Zistel and 
R. Stanley, Gender in Transitional Justice (Palgrave Macmillan 2012); E. Zinsstag and M. Fineman 
(Eds), Feminist Perspectives on Transitional Justice: From International and Criminal to Alternative 
Forms of Justice (Series on Transitional Justice, Intersentia 2013); C. O’Rourke, Gender Politics in 
Transitional Justice (Routledge 2013).

139 L. Hovil, ‘Th e Nexus between Displacement and Transitional Justice: A Gender-Justice Dimension’ 
in R. Duthie (ed), Transitional Justice and Displacement (International Center for Transitional 
Justice/Social Science Research Council 2012) 329, 348.

140 As previously noted the Commission for Reception, Truth and Reconciliation in Timor-Leste, 
experience is a good starting point regarding land and displacement and ESR.

141 Recent articles which examine land and transitional justice include, M. Evans, ‘Land, socio-
economic rights and transformative justice’ Paper presented at Land Divided: Land and South 
African Society in 2013, in Comparative Perspective conference, University of Cape Town, 24–
27 March 2013; O. Zenker, Land Restitution and Transitional Justice in Post-Apartheid South Africa, 
Max Planck Institute for Social Anthropology Working Paper No.134 (Max Planck Institute for Social 
Anthropology 2011).

142 Th ere is a question as to whether there is a way to distinguish between economic and social rights 
violations that should be considered as an element of transitional justice as opposed to being a 
concern for post-confl ict reconstruction. See T. Pasipanodya, ‘A Deeper Justice: Economic and 
Social Justice as Transitional Justice in Nepal’ (2008) 2 International Journal of Transitional 
Justice 378, 390.

143 Schmid (n 5) 8; Laplante (n 1) 347; van Zyl in Laplante (n 1) 333 note 11; Sharp (n 17) 781.



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justice be considered? Whether transitional justice and peacebuilding is viewed 
as part of the same process or as parallel developments, it is clear that there is 
potential for impact stemming from the decisions of transitional justice bodies, in 
terms of remedy and reparations for violations of economic and social rights, upon 
the future realisation and enjoyment of these rights at both a legal and practical 
level. Experiences in Liberia, Nepal and Timor-Leste all support the thesis that 
transitional justice and peacebuilding need to be elements of an integral process. If 
a peace agreement and/or constitution incorporates economic and social rights144 
then the transitional justice mechanisms that follow need to consider economic and 
social rights and the transitional justice body in turn can make recommendations 
that then seek to promote a framework for the realisation of these rights (both legal 
and structural). Without this continuity – if all the processes are seen as separate 
entities then gaps in eff ectiveness will continue. Of course, it does not necessarily 
follow that one step will follow from the next. For example, in the case of Nepal, 
despite adopting a peace agreement with a deep commitment to address economic 
and social rights145 there has been no explicit inclusion to date of these rights in the 
transitional justice mechanisms set up by the Nepalese government.146 Conversely, 
the recommendations of the Liberian Truth and Reconciliation Commission did call 
for reform of public institutions to promote good governance and human rights; to 
reduce poverty; to alleviate illiteracy and to provide equal access to public services.147 
Although they did not address economic and social rights violations within a human 
rights framework, these recommendations should have a positive impact upon the 
enjoyment of these rights in the future. Th ese cases illustrate that the process needs 
to be looked at as a whole to ensure the optimal protection of economic and social 
rights.

6. CONCLUDING REMARKS

Both prosecutorial justice and restorative justice mechanisms have failed to include 
economic and social rights as a core concern. As noted, this is in part due to the 
focus within transitional justice on criminal justice, the historical discourse on 
the nature of economic and social rights themselves and the non-justiciability 
arguments regarding them. It is evident that there is a need to redefi ne ideas of 

144 Th e OHCHR note that ‘Constitutions and peace agreements off er further entry points for 
enshrining protections for economic, social and cultural rights in post-confl ict societies’ (OHCHR 
(n 1) para 63).

145 See the Comprehensive Peace Agreement concluded between the Government of Nepal and the 
Communist Party of Nepal (Maoist), November 21, 2006, sections 7.1.2 and 7.5 Economic and 
Social Rights including the right to food, health, education, social security. See also Th e Interim 
Constitution of Nepal, 2063 (2007).

146 Pasipanodya (n 142) 392; Schmid (n 5) 12.
147 Republic Of Liberia Truth And Reconciliation Commission (n 105) 11–12.



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212 Intersentia

transitional justice to include a broader conception of justice, which includes both 
criminal justice and wider social justice. Th e inclusion of economic and social rights 
resulting in a more holistic process should make transitional justice mechanisms 
more eff ective to the needs of the people. ‘Demands for truth’ must also include 
the truth regarding past and existing violations of socio-economic rights. Evidently 
by bringing such rights violations to the foreground of a truth and reconciliation 
commission process rather than relegating economic and social rights violations to 
contextual or background information results in a more ‘truthful’ account of the 
confl ict and therefore more eff ective justice, truth and reconciliation. Moreover, 
transitional justice bodies need to hold those responsible for violations of economic 
and social rights to account just as it does for violations of civil and political rights. 
Th is will include seeking remedy for direct and deliberate acts of violence which 
violate economic and social rights but also seeking remedy where appropriate for 
more structural endemic violations which are a result of the ongoing confl ict and/or 
those that act as confl ict triggers.148 Furthermore, as Schmid notes ‘incorporating 
economic and social rights violations makes the rhetoric of the indivisibility and 
interdependence of rights a reality’.149

Th e following proposals formulate a minimum starting point for the development 
of a transitional justice process which addresses economic and social rights violations. 
In the fi rst instance, the body appointed to deal with transitional justice in a particular 
State should include members with expertise in the area of economic and social rights. 
Th is will improve their capacity to deal with violations of such rights. Furthermore, 
truth and reconciliation commissions and international courts and tribunals should 
include within their mandate a defi nition of human rights violations which includes 
socio-economic rights. Th eir mandate should include a capacity to investigate, 
examine and remedy these violations, including reparations (of some kind). As noted 
above, the issue of reparations for economic and social rights violations represents 
a challenge that requires further research. Moreover, if a State has not ratifi ed 
international treaties regarding economic and social rights150 the transitional justice 
body should recommend that they do so. Furthermore, the bodies should also consider 
recommendations for wider peacebuilding measures that could assist in the remedy 
and further protection of economic and social rights, both normative legal measures 
and practical measures for implementation of such rights. Finally, those involved 
in transitional justice both practice based and academic researchers should seek to 

148 P. Gready, Th e Era of Transitional Justice – Th e Aft ermath of the Truth and Reconciliation Commission 
in South Africa and Beyond (Routledge GlassHouse 2011) 215.

149 Schmid (n 5) 19.
150 Inter alia, UN International Covenant on Economic, Social and Cultural Rights (n 53) and 

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 
10  December 2008, entered into force 5  May 2013) A/63/435; C.N.869.2009.TREATIES-34 of 
11 December 2009.



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gather evidence of best practice and to undertake further research on all aspects of 
economic and social rights, transitional justice and wider peacebuilding.151

If violations of economic and social rights continue to be omitted from or pushed 
to the background of transitional justice mechanisms, transitional justice cannot and 
will not be truly eff ective. Progress can be made if those working in the fi eld begin 
by accepting the premise that if the aim of transitional justice is to achieve justice 
for human rights violations as an element of sustainable peace, there is a need to 
address grave and deliberate violations of both economic and social rights and civil 
and political rights.152 Th ere is also a need to address where possible violations of 
economic and social rights which are systematic and structural.153 As a starting point 
it is evident that for transitional justice to be eff ective it needs to take into account 
any violations of economic and social rights that are prevalent during the time period 
established by the transitional justice mechanism as within their mandate. Moreover, 
it is important to note that the wider process of peacebuilding will also need to address 
these structural violations if peace is to be achieved.

Human rights cannot make people trust one another or even like one another 
– this is the process of reconciliation. However, human rights can set minimum 
standards of humanity to follow in societies that are in transition from confl ict and 
repression to peace – protections to ensure people feel secure and safe and to allow 
them that security to start the process of reconciliation. Holding to account those who 
are responsible for grave violations of economic and social rights and realising these 
rights as a part of transitional justice and wider peacebuilding are therefore essential 
to any eff ective reconciliation process. Transitional justice should be concerned 
with aiding transition from violence to peace not solely through criminal justice but 
also through realisation of substantive social justice. Ultimately, there is a need to 
foreground violations of economic and social rights within transitional justice. Only 
then can it be truly eff ective.

151 For example further comparative analysis could be undertaken looking at the practice of truth 
commissions with regards to economic and social rights. Likewise, further research on the links 
between economic and social rights, transitional justice and peacebuilding is required.

152 Sharp (n 17) notes that this will include consideration and reorientation of the ‘transition’ in 
transitional justice from a narrow concern with transition to democracy to a broader concern with 
transition to positive peace and freedom from structural violence.

153 See UN Human Rights Council, Report of the Special Rapporteur on the promotion of truth, 
justice, reparation and guarantees of non-recurrence, Pablo de Greiff  (9 August 2012) A/HRC/21/46 
paras 50–51.