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Description
While academics debate the ranking of rights, information from the field demonstrates their indivisibility. This Article explores how truth commissions provide rich documentation of the interrelation between violations of Civil and Political Rights (CPR) and Economic, Social and Cultural Rights (ESCR), using Peru's Truth and Reconciliation Commission (TRC) as an example. The TRC's findings show how social and economic inequalities contributed to the eruption of political violence, which further exacerbated these conditions. This revelation challenged the TRC to develop a reparation plan that adequately responded to the needs of victim-survivors, while maintaining a causal link with damage caused by the conflict. Ultimately, the TRC focused narrowly on repairing damage caused by CPR violations. Yet now, almost four years later, the government confuses development with traditional reparation measures, generating criticism. The author proposes that Peru's post-conflict recovery may need to accept the overlap between reparations and development to improve the "'well being" of its intended beneficiaries.
INTRODUCTION
Is one set of rights more valid than the other? This question has driven the rights hierarchy debate for decades. (1) In essence, the debate revolves around whether economic, social and cultural rights ("ESCR"), such as the right to health, housing or food, are valued differently from civil and political rights ("CPR"), such as the right to free speech, liberty and life, or if all are "interdependent, interrelated, and of equal importance". (2) The debate originated with the division of human rights into two covenants, the International Covenant of Civil and Political Rights (ICCPR) (3) and the International Covenant of Economic, Social and Cultural Rights (ICESCR). (4) This division bred two schools of thought: one viewing all rights as equal and indivisible, and the other viewing ESCR as mere aspirations. (5)
If theoretical debate does not settle the indivisibility question, simple reality should. Everyday life, especially in poor countries with histories of political violence and repressive governments, prove the impossibility of dividing rights into generations, especially when the guiding criterion is valuing life and dignity. Powerful documentaries, books and reports show the human face of these rights, providing the most persuasive arguments for disbanding with ranking. For example, physician and anthropologist Paul Farmer documents how structural violence in the form of poverty and social injustices cause life and death situations in countries such as Haiti, Russia and Mexico. (6) Denials of social rights that lead to death beg the question as to whether such protections are essential for human dignity and life.
This Article proposes that the work of truth commissions may help demonstrate the indivisibility of rights. Truth commissions have become a popular mechanism within the transitional justice field for addressing past episodes of political violence and repression. (7) Until now, however, they have generally focused on providing clarification of, reparation for, and more recently, punishment for, CPR violations. (8) Yet a truth commission process that clarifies the context, causes and consequences of political violence and internal armed conflict might provide rich documentation of the symbiotic relation between the different generations of rights. Even when truth commissions choose not to take positions on the violations of ESCR, they may still provide compelling evidence of the interrelatedness of ESCR and CPR-in terms of causes and consequences arising out of the same series of events.
This Article explores this proposition through a case study of Peru based on the Author's field research. (9) Like other countries in Latin America, Peru fought its own war against insurgent rebel groups. Specifically, in 1980 the self-declared Maoist group Sendero Luminoso ("Shining Path" or "SL") declared war on the state to make way for its own utopian visions. (10) SL soon resorted to viciously violent tactics that provoked equally violent reactions from the armed forces and led to the death and disappearance of thousands of Peruvians, mostly in the rural, poor countryside. Although the major leaders of SL were imprisoned in the early 1990s under authoritarian leader Alberto Fujimori's draconian antiterrorist
laws, official brutality continued and the conflict did not truly end until 2000, when a series of corruption scandals forced Fujimori to flee to Japan and resign from the presidency. (11)
An interim government created Peru's Truth and Reconciliation Commission ("TRC") in 2001 to address this violent past by investigating the causes, consequences and responsibilities of the conflict. Laboring for two years, and collecting some 17,000 private and public testimonies, the TRC issued its nine-volume Final Report in August 2003. (12) The TRC concluded that an estimated 70,000 people were killed during the conflict and thousands more were disappeared, displaced, tortured, and unjustly imprisoned. Significantly, the TRC dedicated an entire volume to the causes of the war, delving into the social, economic and cultural inequalities that fueled the insurgency. (13) The TRC concluded that the conflict worsened already dire social, economic and cultural conditions. In response, it issued a series of recommendations that included criminal trials, institutional reform and the Plan Integral de Reparaciones ("PIR"), (14) all intended to both respond to the harm caused by the conflict, and also to erect institutional protections so that the violence nunca mas se repite (never again repeats). (15)
In Part II, this Article shares Peru's experience in order to illustrate how a truth commission, with the benefit of an expansive mandate, can provide rich documentation of on-the-ground indivisibility of CPR and ESCR before, during, and after the conflict. Moving beyond simply listing an inventory of human rights violations, the TRC provided a more holistic view of Peru's conflict to help inform post-conflict recovery and prevention strategies. However, as a caveat, in Part III the Author shares how this more expansive approach has complicated the pressing task of designing a reparations program that addresses and satisfies the expectations of victimsurvivors
of Peru's war. Indeed, the current needs of those entitled to reparations often have roots tracing back to violations of both ESCR and CPR. The Author narrates the TRC's struggle with the indivisibility principle in formulating its recommendations for reparations, and how it chose as the "point of entry" for determining reparations the causal link to direct damage caused by the latter rights.
As a result, now, almost four years since the TRC presented its Final Report, the government's attempts to implement these measures generate confusion and tension. Collective and non-pecuniary individual reparations closely resemble ESCR and development measures and thus cause victim-survivors to express great dissatisfaction since they feel the government is insufficiently responsive to individualized CPR violations. Rather, they perceive these collective reparations as part of pre-existing obligations of the state to promote development. This experience points towards a new dilemma in transitional justice contexts: to find the appropriate approach to reparations that at once acknowledges harm suffered from CPR violations within a larger approach that embraces the indivisibility of the different generations of rights. In Part IV, the Article concludes with the suggestion that this predicament merely demonstrates the impossibility of dividing rights, but that it perhaps provides an important key to more adequately facilitating the overarching goal of prevention in post-conflict recovery.
I. TRANSITIONAL JUSTICE, TRUTH COMMISSIONS, AND THE INDIVISIBILITY OF RIGHTS
Professor Ruti Teitel defines transitional justice as "the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes." (16) In general, the discipline of transitional justice recognizes that, due to political and historical realities, traditional justice mechanisms may be inadequate during political transitions towards liberal democracy. (17) Often, inadequate or corrupt judicial institutions give rise to or permit repression and political violence, and the same problems continue during political transitions. Similarly, traditional judicial mechanisms may simply be incapable of addressing episodes of massive human rights violations. Alternatively, political compromise and the quest for peace and reconciliation often require more leniency and less strict adherence to norms of criminal justice. (18)
Given the tensions inherent in balancing absolute traditional justice through criminal trials with political compromises like selective prosecutions and amnesties, the transitional justice approach generates lively debate that has grown in complexity over the years, prompting continued development of transitional justice mechanisms. (19) Teitel traces the genealogy of this evolution back to World War I, (20) although the South African Truth and Reconciliation Commission significantly increased the popularity of transitional justice only a decade ago, bringing the topic of truth commissions to "the center of international attention." (21)
Indeed, even though the truth commission model arose almost thirty years ago with mixed results, only in recent years has it become "the darling" of the transitional justice movement. (22) While models for truth commissions vary depending on local conditions, they typically consist of a temporary investigatory body whose mandate includes establishing an official historical record of episodes of violence, repression and other situations that give rise to human rights violations. (23) Truth commissions are sometimes controversial when they appear to displace traditional justice mechanisms in an exchange of truth for justice. (24) Some argue, however, that, in some instances, they may be preferable for a number of reasons. When criminal prosecutions are impossible due to political exigencies, truth commissions respond to the vacuum left by compromised justice-a next best option. (25) In addition, some academics have recognized the limits of the law in addressing violent regimes. (26) Alternative mechanisms like truth commissions may actually be more capable of promoting post conflict recovery. They may provide better frameworks for restorative justice than individualized trials, especially because they can recommend reparations plans for a wide category of victim-survivorsthose persons directly harmed by human rights violations, as well as their families. (27) Moreover, unlike criminal trials that sideline victim-survivors to the role of witnesses to determine criminal liability, truth commissions can provide healing forums that focus specifically on the voices of victim survivors. (28)
Importantly, unlike criminal trials in which each party presents its version of a finite set of facts, truth commissions offer the opportunity to delve more deeply into collective truths, including the causes and history of a country's violent and repressive past. It is important to note, however, that when discussing the importance of truth and "collective memory," most transitional justice literature focuses on the need to reveal the facts about human rights violations and less frequently mention the need to explore the truth about the factors and conditions that led those violations. (29) If, however, the overarching aim of a truth commission is prevention, as it was in Peru (as reflected in the expression nunca mas), the historical causes of political violence and conflict become highly relevant. This is especially true when it comes time to formulate proactive responses, such as institutional, social, and economic reforms needed to promote this end. Despite its importance, findings regarding the factors and conditions that led to CPR violations can actually confuse the task of designing reparations, which will be examined in Part III, after an initial discussion of how the TRC's mandate directed its investigations to explore why the internal armed conflict occurred.
A. Expanded Mandate: The TRC Looks at Why the Political Violence Occurred
Peru's TRC became possible only after Fujimori fled Peru in the wake of corruption scandals, thereby ending its twenty-year internal armed conflict. While awaiting a new presidential election, the interim government seized the opportunity to seek ways of addressing its tragic past by forming a special working committee to develop recommendations towards this end. Susan Villaran, then Peruvian Minister of Women and Development, who participated in this committee, explained that the idea of a truth commission arose due to the very important need to clarify the many "truths" of all the different actors in the conflict, and explain why Peru's prolonged episode of political violence occurred. (30)
Upon receiving the recommendations of the working committee, interim president Valentin Paniagua issued an executive decree creating a truth commission. The TRC's overall mandate was to investigate the causes and consequences of the internal armed conflict, and included a directive to "analyze the social, political and cultural conditions, as well as the behaviors of society and State institutions, that contributed to the tragic violence that occurred in Peru." (31) This broad focus influenced the 12 commissioners, a largely interdisciplinary team with a notable presence of national academics, to present much more than just an inventory of human rights violations and patterns. Rather, it consulted with experts from social sciences, history and journalism, as well as secondary reports and studies undertaken by both the government and private persons and institutions to explore the causes and consequences of the political violence.
In going beyond the traditional orientation of truth commissions, which have emphasized the clarification of human rights atrocities that constitute violations of CPR, the TRC may indicate a new trend. (32) Specifically, truth commissions, while carefully documenting specific types of CPR violations, traditionally have devoted less attention to explaining why these abuses occurred. Truth commission reports, such as Argentina's Nunca Mas, (33) Chile's Rettig Report, (34) and E1 Salvador's From Madness to Hope, present brief explanations of political polarization, repressive state apparatuses, corrupt judiciaries, faulty rule of law and other institutionaltype
defects. (35) However, more recent experiences, such as the truth commission reports issued by Guatemala and Peru, have delved more deeply into the historical social and economic causes and conditions that led to the country's "dirty war." (36) The practical results of this wider approach to truth commission investigations contributes to our understanding of whether CPR can truly be divided from ECSRs on the ground.
B. Reality on the ground: the indivisibility and enforceability of rights
Interestingly, at its conception in 1948, human rights emerged as a unified body, as reflected in the Universal Declaration of Human Rights ("UDHR"). (37) In the UDHR, the concept of respecting "the inherent dignity of and the equal and inalienable rights of all members of the human family" encompassed both CPR, such as the right to life, liberty, and thought, (38) and ESCR, such as the right to work, health, and education. (39) While the former rights are considered "negative" rights that require the state to refrain from interfering with individual freedoms and liberties, the latter are "positive" rights that require the state to take affirmative steps to realize them. (40) However, the birth of the human rights movement also took place at a time when the Cold War's ideological battles undermined the assumption of universality with respect to ESCR, whose tenor rung uncomfortably close to communism. (41)
Indeed, this political context shaped international negotiations while memorializing these rights into binding treaties. Certainly, even though the spirit of human rights emerged as a unified body, they were divided in 1968 by the creation of the ICCPR and the ICESCR as two separate covenants. This creation of two separate covenants governing human rights produced two competing views regarding the hierarchy of rights: one viewing all rights as equal and indivisible, and the other viewing ESCR as mere aspirations.
This debate has been fueled not just by political ideology, but also by questions of the legitimacy, enforceability and practicability of ESCR. In particular, certain clauses of the ICESCR make its provisions not immediately binding, as is the case with the rights protected by the ICCPR. In particular, Article 2(1) of the ICESCR reads:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means. (42)
The Limburg Principles, created in 1987 as guidelines for interpreting the ICESCR, clearly state that despite the leniency that could be read into Article 2, States parties nevertheless need "to move as expeditiously as possible towards the realization of the rights. Under no circumstances shall this be interpreted as implying for States the right to defer indefinitely efforts to ensure full realization." (43) Yet, in practice, states often point... |
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