Transitional Justice and Distributive Justice in post conflict societies

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In this post, Dr Felix Torres discusses the issues of transitional Justice and distributive Justice in post conflict societies

Dr Felix E Torres

Transitional justice is commonly understood as the set of legal and political mechanisms that societies that overcome an authoritarian regime or an armed conflict implement to deal with violations of human rights that occurred on a large scale in the past. Mechanisms often include trials, truth-seeking measures, reparations, and guarantees of non-repetition. As these mechanisms are increasingly applied in post-conflict societies, many of them affected by pervasive patterns of poverty and inequality that affect victims and non-victims alike, the question of whether transitional justice should meet distributive justice objectives has emerged strongly in academia and advocacy sectors. While there is ample recognition that issues related to distributive justice, such as the guarantee of economic and social rights (ESRs) cannot be ignored, the field is divided as to whether transitional justice itself should address them, with some advocating an expansive approach to transitional justice, while others are more cautious given the implementation gap that has traditionally plagued the field even in pursuit of much more modest goals. These positions, however, have two important similarities. First, they share an understanding of transitional justice and distributive justice as two different spheres of justice, the former primarily associated with the formal side of the law and the seemingly neutral application of human rights, and the latter with politics, deliberation and democratic accountability. In addition, they have in common the idea that distributive justice is equivalent to social transformation and redistribution. I disagree with both positions.

The application of transitional justice in post-conflict societies has gone hand in hand with a peacebuilding agenda anchored in political and economic liberalism, an agenda that emphasises that these societies primarily need stable markets and the rule of law to be back on their feet. Not surprisingly, a particular conception of distributive justice underpins this peacebuilding agenda, namely a liberal conception that revolves around individual responsibility and deservingness. The central idea of this conception of justice is that socioeconomic inequalities are a matter of social concern only insofar as they result from external “circumstances” not attributed to the individual, while people must bear the consequences of their own misfortune when this is the result of their own “choices”. In peacetime societies, this understanding of justice was theorised and defended by liberal egalitarians in the US and UK (i.e., Rawls, Dworkin, Cohen, Sen), and was appropriated internationally by development actors, human rights scholars, and transitional justice advocates.  Applied in post-conflict settings, this conception of justice basically holds that victims of violence face circumstances that are imposed on them and over which they have no control, namely the violent act. Therefore, they should not be held responsible for their misfortune and society should intervene to rectify the blow to their socioeconomic conditions.

To a large extent, this understanding of distributive justice underlies the work of a variety of actors dealing with transitional justice, such as the Inter-American Court and Commission, the UN Special Rapporteur on truth, justice, and reparation, and domestic authorities that deal with the rights of victims, such as the Truth and Reconciliation Commission of Peru and, in Colombia, the Constitutional Court and the special jurisdiction for land restitution. Throughout the work of these bodies, the category of “victim” stands out because it captures the fact that people were affected by external circumstances unjustly imposed on them, in situations in which the state authorities themselves directly committed human rights violations or failed to protect victims from the conduct of non-state actors. Therefore, victims of serious abuses enjoy a special status that entitles them to measures that are denied to other segments of the population, such as the “traditionally poor”.

In certain countries, this special status means that victims have priority access to goods that are necessary for the guarantee of their ESR as a means of reparation. This is exemplified by a set of judgments by the Constitutional Court of Colombia, according to which the budget for victims should have priority over ordinary social spending, or that victims should overcome poverty at a faster rate than the “traditionally poor”. This priority treatment is justified, according to the Colombian Court, in the lack of respect and protection of rights by the state, as well as in the breach of its positive obligations towards victims after the occurrence of abuses. The fact that victims, especially internally displaced people, are often among the poorest sections of society also played an important role in justifying this prioritisation strategy. For the Court it was crucial the argument that victims find their opportunities to secure their ESR unfairly affected by external factors, namely violence, and stressed that authorities have the responsibility to level the playing field with respect to non-victims.

It is clear, then, that an opportunity conception of distributive justice informs in an important way the way in which victims are conceptualised, their standing in relation to other vulnerable groups and in post-conflict prioritisation strategies regarding the guarantee of ESR. This is unfortunate, since this conception of justice is marred by serious flaws. First, by justifying priority treatment for victims over the “ordinary poor” on the grounds that the former were affected by external circumstances that disturbed equal opportunities, state authorities are implying that poor people fully dominate their own destiny and must bear the consequences of their “bad” decision-making by themselves — unlike victims who are backed up by society. The poor are poor because “they want to” or “deserve it”, the state authorities are insinuating. Yet this opportunity conception of distributive justice is flawed for another reason, this time by negatively affecting victims themselves. On the one hand, this conception of justice reproduces idealised interpretations of victimisation, according to which victims must be completely innocent to be considered legitimate victims, creating hierarchies among them and placing “victims with dirty hands” outside the reach of the state’s socioeconomic response, as exemplified by land restitution judges in Colombia. Under this scenario, victims are expected to act “righteously” despite the circumstances surrounding them. On the other hand, and quite paradoxically, this understanding of justice also reproduces interpretations of victimisation that deny victim agency. Basically, victims are considered as objects overwhelmed by the weight of circumstances. This understanding of justice leads to underpin social and state support for victims on their supposed inferiority, on the fact that they are not autonomous subjects — unlike the rest of their fellow citizens. The problem with this, in addition to being disrespectful towards victims, is that it places state duties on shaky ground, that of social compassion, which tends to fade over time.

[This blog is based on my new article: Felix E Torres, ‘On Deserving Victims and the Undeserving Poor: Exploring the Scope of Distributive Justice in Transitional Justice Theory and Practice’ 2023 Human Rights Quarterly, 45(2), 306-334]

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