In disadvantaged and dismantled societies, Transitional Justice (TJ) will lose all credibility if it has not dealt with social injustice, corruption, exploitation of resources and economic violence. Moving towards reconciliation in Bosnia and Herzegovina requires the rethinking of TJ from the very beginning, while inclusion of economic and social rights is essential for TJ effectiveness.
The social security that was once enjoyed in Bosnia-Herzegovina, and included a wide range of guaranteed social and economic rights, has disappeared with the fall of the Iron Curtain and the outbreak of the Bosnian War. Bosnia went through two transitions—a post-socialist transition and a transition from war to peace. Economic liberalization, and the transition to a self-regulating free market, has contributed to the gradual increase of poverty and the huge gap between rich and poor. “Misplaced” international aid, smuggling, and the black market created new elites, primarily enriched by the “war advantage.” This burdens poorer households, further entrenching, and even exacerbating, the injustices that underpin conflict in the first place.
In this sense, all citizens of BiH, apart from the political elites that profited from the war—widely known as war-profiteers—could be considered victims of transition. The question is how to deal with violations of economic and social rights committed not only during conflict, but also after conflict by tycoons and regional interest groups who, through greedy privatization and corruption, brought this society to the edge of existence. Transitioning to economic liberalization left a space for structural violence by elites that any existing Transitional Justice mechanism failed to anticipate. These economic degradations brought about by such individuals have caused tremendous suffering for the entire society and go without punishment.
In the context of Transitional Justice (TJ), it is important to mention that, as a result of Cold War confrontations, the notion of civil and political rights, as recognized by Western liberals, was introduced as the core of society; violation of such rights soon became a cornerstone of International Law. In the Eastern bloc, which then primarily consisted of communist countries, priority was placed on economic and social rights as a function of the socialist state. Several factors, including the fall of communism, Western supremacy, and a shift toward economic liberalization resulted in the enforcement of Western values in the East, thus placing civil and political rights as priority over economic and social rights. Consequently, human rights violations during war and transition are now presented in a more political nature without connection to economic realities, therefore, my argument asserts that TJ has also become more connected with civil and political rights and often fails to deal with an essential and integral point—economic crimes within transition. Thus, maximum potential to transform society with regard to truth and reconciliation cannot be reached without expansion of a TJ paradigm geared toward the inclusion of social and economic rights. Let us now consider the development of TJ and its mechanisms.
During the late 1980s, Ruti Teitel, for the first time, formulated TJ in a technical way. The term was widely discussed and criticized because it combined two apparently irreconcilable elements: the idea of justice and the idea of change, which mark both tragedy and hope. In search of a stable and peaceful society, new governments, with support from the international community, developed a set of mechanisms broadly known as Transitional Justice Mechanisms, which would presumably help societies face their past and move toward a democratic, rights-based future. TJ consists of both judicial and non-judicial processes, including prosecution initiatives, the facilitation of initiatives related to the right to truth, the delivery of reparations, institutional reform, and national consultations. Those mechanisms have two primary aims: to provide relief for the victims and to create or enhance opportunities for the transformation of political systems and social processes. TJ is not some special form of justice, but rather a justice adapted to societies undergoing transformation.
In a broader sense, TJ refers to how societies overcome social divisions or seek reconciliation, and how they create a justice system to prevent future atrocities. There is a limited scope that effectively addresses the underlying and contributing factors to conflict and oppression, such as social, economic, and cultural discrimination or deprivation. Louise Arbour, former United Nations High Commissioner for Human Rights, asks why economic, social and cultural rights (ESC) have not traditionally been a central part of TJ initiatives, and whether there are real impediments to the pursuit of such a comprehensive ideal of justice for societies in transition. She further concludes that the reality of the marginalization of ESC rights is reflected in the articulation of our conception of justice itself.
The first and oldest mechanism of TJ is its criminal justice mechanism. It emerged during the post-WWII period when the Nuremberg Trials were established to address the atrocities committed by Nazi Germany. The aim of these trials was to reduce collective guilt to individual accountability. Philosophically, it has been argued that the trials relied on a legalist paradigm that was ill-suited to address the social forces and psychological dimensions that characterize mass violence. Let us imagine that there was a possibility to bring cases of war profiteers—nowadays elites—who steal from the citizens and enrich themselves off of the backs of an underprivileged society damaged by the war to the International Criminal Tribunal for the former Yugoslavia (ICTY). Deprivation of social and economic rights in BiH, and crimes committed within the scope of transitional economic liberalization, largely remain unpunished. These crimes, like many others, are connected with civil and political rights, or more precisely, with bodily integrity, which emphasizes the importance of human autonomy and self-determination. But the prosecution of such crimes is not in the best interest of those international groups who also profited from the Bosnian conflict through the selling of weapons and “their politics” in the region. The logic of these politics went hand in hand with neoliberal doctrine: first they fought, then peace was made, and, in the aftermath, the factories were robbed by bargain privatization that filled the pockets of the present-day elite; an elite that would again find “investors” for privatization and, once more, fill their pockets.
The second mechanism of TJ is the truth commission. Described as temporary ad hoc institutions of inquiry, oftentimes government sponsored, truth commissions aim to investigate and report on major human rights abuses. Truth commissions are not judicial bodies, and thus have no authority to administer punishment. Their fundamental aim is truth-seeking through investigation, interviewing, the creation of state archives, and the publication of findings, which help to establish facts about a repressive regime’s secretive and destructive actions. The term”truth” has prompted much debate. The advocates of TJ argue that expressing the truth leads to a process of national catharsis, which can channel energy toward national reconciliation. One of the key questions is: “Which ‘truth’ will emerge?” In the Balkans, many truths exist, and the difficulty lies in how to reconcile all these truths into one agreed-upon history.
As a third mechanism of TJ, institutional reforms that build fair and efficient public institutions can enable post-conflict and transitional governments to prevent the recurrence of future human rights violations. Such reforms must take place in order to transform the military, police, judiciary, and related state institutions from instruments of repression and corruption to instruments of public service and integrity that can regain a society’s trust. On another front, this reformed system should provide legitimate support for the provision of security. The Dayton Peace Agreement, while successful in putting an end to war, established constitutional structures that further entrenched ethnic divides. The lack of confidence in BiH’s institutions is a significant problem, therefore, we have a situation with a high demand for justice and with few resources to address such a demand. Where extrajudicial mechanisms are concerned, there is a need within society for the restoration of a moral philosophy. With regard to institutional reforms as a TJ mechanism, The Constitution of BiH, and annex IV of Dayton Agreement, mentions only the right to education out of the range of economic and social rights that citizens of one country should be entitled to.
As a final mechanism, reparations represent a form of compensation awarded to victims of human rights violations for damages they’ve incurred. The aim is often to provide recognition and respect to victims and survivors of such violations. Reparations involve the direct distribution to victims of a set of goods, which can include economic transfers, both material and symbolic. Reparations such as this can often have the largest impact on victims’ everyday lives while also providing a grand gesture toward the recognition of their suffering. This is the only mechanism that directly remedies the socio-economic conflict. However, the amount of money involved is rarely large enough to be life changing. Studies have shown that most one-time payments are used to pay off debts for medical or school fees, or are simply consumed without creating any real long-term changes in the recipient’s standard of living. In BiH, the right to reparation is based on a right that has been violated and on a disability that must be proven, while the amount of money is determined according to the degree of disability. Paradoxically, military victims of the war receive greater reparations than civilian war victims, which is evidence of a socially unjust system.
Let us now more broadly discuss the economic and social dimensions of TJ. There is an assumption that civil and political rights are basic freedoms, for which violations can be found, whereas economic, social and cultural rights are subject to priorities established in the political arena and are considered entitlements that states may only be able to provide over the long term depending upon available resources. Therefore, these rights are frequently misunderstood and resistance toward their enforcement by TJ mechanisms has been, as a logical result, inevitable.
Why does TJ often ignore ESC rights? One explanation relies on the notion that it is easier to address violations, violators and remedies of civil and political rights, particularly the concomitant development of international criminal law, which mostly treats those civil and political rights linked to bodily integrity. Not surprisingly, there have been very few prosecutions under international criminal law for massive violations of ESC rights in conflict; the Vienna Declaration on Human Rightsseeks to end qualitative division between civic and political rights, and economic and social rights, by stating that: “All human rights are universal, indivisible, interdependent, and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”
The right to an adequate standard of living, including food and shelter, education, physical and mental health, social security, decent working conditions, cultural benefits, and rights to property are guaranteed by the International Covenant on Economic, Social and Cultural Rights. However, in situations of armed conflict, deprivations of land, food, water, and medical care can kill large numbers of people, and even those who survive can suffer long-term damage that affects the quality and length of their lives. For these reasons, violations of economic and social rights can have a devastating effect, often extending across several generations, as victims are denied educational and medical services, social protection, and opportunities for employment. In the broader Bosnian context, inequality and oppression are maintained by political elites who have built a strong foundation for further manipulation and exploitation during times of peace and transition.
For transitional processes to be more efficient and long-term, more needs to be done to address the overall disaffection with the deep social inequalities that exist within post-conflict societies. Little is said about the long-term socioeconomic healing of post-conflict societies, and even less is said about overcoming existing inequalities as a necessity for achieving social justice that can establish a sustainable and peaceful future. Rama Mani explores the concept of social justice, arguing that, in an impoverished and devastated society, transitional justice loses all credibility if it does not deal with social injustice, corruption, and the exploitation of resources. She accepts that, for many survivors, everyday injustices rooted in historical inequalities may be just as important, if not more important, than the extraordinary injustices committed during the conflicts. She also emphasizes that the issues of social justice seem to lie just beyond the traditional borders of transitional justice.
Justice that is rooted in substantive equality requires the redressing of past wrongs and enabling an equality of future opportunity as articulated in John Rawls’ second principle of justice, which states that social and economic inequalities are to be arranged so that offices and positions are open to everyone and so that they are of the greatest benefit to the least-advantaged members of society. These considerations should provide the initial steps for TJ within past and present contexts. Rawls further states that injustice is simply inequality that inhibits the benefits of all. Implementation of concrete economic and social programs can reduce core injustices and put social justice as a primary societal goal. This, however, contradicts the neoliberal paradigm because it requires state involvement. In the end, one has to ask: “What is more difficult to live with? The perpetrators of the crime or the profiteers that enjoy the fruits of these crimes?”