1. Introduction
Initially considered an exotic and exceptional field of study and practice,Footnote 1 transitional justice has overcome its ‘mid-life crisis’Footnote 2 and is now well established as the lingua franca for addressing the legacy of widespread abuses in societies in transition to democracy and/or peace.Footnote 3 As Arthur explains, in the early days of the field, a ‘first generation’ of transitional justice advocates took a highly experimental approach to address the difficult question of how to deal with the legacy of serious abuses in societies emerging from authoritarian regimes in South America. In these contexts, strict adherence to traditional standards of justice, including those prescribed by international law, was not an option, as it risked destabilizing emerging democracies and leading to new human rights violations.Footnote 4 However, over the course of a few decades, the field has become highly prescriptive and legalistic, developing a ‘toolbox’ of measures to be applied in a wide variety of contexts.Footnote 5 This has largely been possible thanks to the crystallization of norms in international law that have been interpreted as embodying a strict regime of individual rights and state obligations governing the response to the aftermath of widespread violence.Footnote 6 Typically including the set of rights to truth, justice, reparations and guarantees of non-recurrence, the label ‘victims’ rights’ has not been interpreted to include economic and social rights (ESR). Certainly, this categorization is not an attempt to deny that people affected by violence have ESR, but rather to specify that the source of these rights is their status as ordinary citizens, not victims of serious abuses.Footnote 7
This distinction has played a crucial but under-addressed role in the remaking of the field and its application in contexts very different from those in which it emerged, currently in conflict and post-conflict societies where widespread violence overlaps with poverty and discrimination.Footnote 8 As this article explores, the distinction has allowed the field to dissect the everyday concerns of impoverished victims from the traditional accountability paradigm that has inspired the field since its inception, allowing transitional justice to focus on the most serious violations of civil and political rights while shifting the bulk of the responsibility for addressing ESR to other fields and actors.Footnote 9 Today, the idea that ‘victims’ rights’ revolve fundamentally around the holistic implementation of the four pillars of transitional justice has gained international acceptance and has been accompanied by the consolidation of a ‘dominant model’ that prioritizes the fight against impunity and sidelines ESR.Footnote 10
In response, scholars have argued for the inclusion of ESR within the mandate of transitional justice mechanisms, initially in relation to criminal trials and truth and reconciliation commissions (TRCs),Footnote 11 and more recently through the burgeoning literature on transformative reparations.Footnote 12 However, much of this scholarship has taken for granted the distinction between the rights afforded to individuals affected by violence as ‘victims’ and those they possess as ‘citizens’, without critically examining how this conceptual divide has contributed to the marginalization of ESR within the field of transitional justice.
This article is the first to critically examine this distinction from the perspective of reparations. It focuses on the thesis that state obligations to make reparation and to guarantee ESR to victims are conceptually distinct because they are based on the different status of beneficiaries (‘victims’ and ‘ordinary citizens’) and should therefore be fulfilled separately, making the guarantee of ESR an illegitimate means of reparation. This position, dubbed here ‘the separability thesis’, has been widely endorsed by academics and practitioners,Footnote 13 TRCs,Footnote 14 national courts,Footnote 15 the Inter-American Human Rights System,Footnote 16 and UN special procedures.Footnote 17 While the separability thesis is instrumental in recognizing victim harm and state wrongdoing as part of a broader anti-impunity agenda, it is criticized here for enabling the conclusion that victims can be made ‘whole’ while remaining destitute, thereby contributing to the neglect of the everyday concerns of impoverished victims.
To challenge this conclusion, this article provides a critical conceptual history that clarifies the origin of the separability thesis and the path it has taken to become a central element of the transitional justice lexicon and its current application in conflict-affected societies. As Arthur explains, the creation of concepts is not only a response to concrete problems in political life, but also a means of legitimizing the practices used to respond to those problems.Footnote 18 This being the case, this article delves into the theoretical debates, political struggles and social conditions that led a ‘second generation’ of transitional justice advocates to elaborate and legitimize the separability thesis as the best way to resolve specific post-conflict challenges. In short, this conceptual history picks up the discussion where Arthur left it and accounts for the shift towards a highly prescriptive and legalistic understanding of victims’ rights – in clear opposition to ESR – that has allowed transitional justice to develop and be implemented rapidly beyond the confines of transitions to democracy.Footnote 19 In so doing, the article demonstrates that the sidelining of ESR from the dominant model of transitional justice is not an accident that can be remedied by broadening the scope of its traditional pillars, as the existing literature suggests, but rather a strategic choice that underpins the dominant model and its application in post-conflict settings. Faced with this choice, the article explores alternatives to the dominant understanding of reparations and ESR that have not been fully explored and their value recognized because they are not in line with the objectives associated with the fight against impunity.
Following the introduction, the article is divided into three main parts. Section 2 clarifies the extent to which a dominant model of transitional justice that ignores ESR has become established in international law and reconstructs the various waves of the still unresolved debate on where to draw the line between ‘too much’ or ‘too little’ transitional justice for ESR, including the more recent literature on transformative reparations. Against this backdrop, Section 3 provides a conceptual history of the separability thesis by exploring the encounter with transitional justice in Colombia in the mid-2000s. During this period, the separability thesis skyrocketed to become a central concept in international law, especially in UN special procedures and the Inter-American Human Rights System, exerting a profound and enduring influence on the field of transitional justice. Section 4 draws lessons from this conceptual history and argues for the development of a framework that articulates victims’ ESR claims in terms of reparations. To this end, it examines the work of a human rights body that has been under-studied in transitional justice scholarship, namely the UN Committee on Economic, Social and Cultural Rights (CESCR).Footnote 20 The section concludes by addressing a set of realpolitik objections commonly raised in debates concerning ESR within the framework of transitional justice.
However necessary and beneficial the separability thesis may have been for victims during the encounter with transitional justice in Colombia, it needs to be reassessed if their main (socioeconomic) concerns are to be taken seriously. Reparations need to be reconnected with the guarantee of ESR. This implies rethinking the state-individual relationship beyond the traditional understanding of the state as a source of suspicion and target of stigmatization for its responsibility in serious abuses, emphasizing its positive role in the active fulfilment of human rights in contexts affected by poverty and inequality. By challenging the separability thesis, this article seeks to chart a new course for addressing the fraught relationship between transitional justice and ESR, anchoring the emerging literature on transformative reparations in the International Covenant on Economic, Social and Cultural Rights (ICESCR).
2. The consolidation of transitional justice in international law: Impoverished victims and the sidelining of ESR
2.1 The consolidation of the dominant model
Without being labelled ‘transitional justice’, developments in international criminal law and regional human rights law in the 1990s provided the foundations for the emergence of a self-conscious field of study and practice in which dealing with the past poses challenges that are inseparable from international law.Footnote 21 Yet it was not until the early 2000s that a systematic understanding of transitional justice was introduced into the international law lexicon, a process largely driven by the United Nations. The much-discussed 2004 UN Secretary-General’s Report on the Rule of Law and Transitional Justice was a watershed moment that articulated for the first time a ‘common language of justice’ for the aftermath of large-scale violence.Footnote 22 Here transitional justice is understood as the pursuit of the allegedly mutually reinforcing goals of justice, peace and democracy, where measures of truth, justice, reparation and guarantees of non-recurrence must be implemented in a holistic and conflict-free manner.Footnote 23 This report was followed in 2005 by two soft law instruments that contributed significantly to crystallizing an understanding of the four pillars of transitional justice in terms of a regime of ‘inalienable’ rights required by international law, namely the Updated Principles to Combat Impunity and the Basic Principles and Guidelines on the Right to a Remedy. Footnote 24 These instruments overlap with the holistic notion of transitional justice adopted in the 2004 UN Secretary-General’s Report.Footnote 25
In 2011 the UN Human Rights Council appointed Pablo de Greiff as the first Special Rapporteur on Truth, Justice and Reparation, whose perhaps most important contribution was to provide the UN framework with a conceptual basis. In a nutshell, de Greiff argues that if implemented haphazardly, it is unlikely that victims will interpret measures of truth, justice, reparation and guarantees of non-recurrence as delivering justice.Footnote 26 However, he argues that, if implemented holistically, these measures can complement each other to overcome their individual limitations. This would provide recognition to victims as rights holders and foster civic trust by reaffirming violated norms.Footnote 27 In this context, reparations are understood as a ‘token’ that pursues ‘symbolic’ goals.Footnote 28 They provide the ‘material form’ of recognition of wrongdoing and demonstrate that the interests of victims have been taken to heart.Footnote 29
The place of ESR within this framework is ambivalent at best. This is demonstrated by the very scant attention to ESR and victims’ needs in the 2004 UN Secretary-General’s ReportFootnote 30 and the Basic Principles and Guidelines on the Right to a Remedy.Footnote 31 The decision to divide the Principles to Combat Impunity into two different sets of rules – one on civil and political rights and the other on ESR–,Footnote 32 with only the former being completed and updated,Footnote 33 contributed to the lack of development of an accountability framework for ESR violations.Footnote 34 In laying the conceptual foundations of the mandate, the Special Rapporteur on Truth, Justice, and Reparation did not take into account subsequent reports issued by the UN Secretary-General that contain various references to ESR-related issues.Footnote 35 At the time of the article’s submission, no thematic report had yet engaged substantively with the ICESCR.
The neglect of ESR also applies to other legal bodies that have reproduced, if not inspired, the UN-based understanding of transitional justice in terms of a mutually reinforcing set of victims’ rights and state obligations. As Haldemann explains,Footnote 36 the Inter-American Court of Human Rights (IACtHR) heralded in the Velásquez Rodríguez v. Honduras case the framework that would eventually be consolidated, one of strict state obligations to investigate serious abuses and establish the truth, to identify and punish those responsible, and to provide full reparation to victims.Footnote 37 Although the IACtHR’s jurisprudence has been considered groundbreaking in advancing the judicial enforceability of ESR,Footnote 38 these developments have only taken place in peacetime and have not been fully mobilised in transitional justice contexts. In these contexts, socioeconomic issues are addressed partially and only indirectly, through an expansive remedial practice in response to violations of civil and political rights that fails to satisfactorily address the ESR of all victims of serious abuses.Footnote 39
The marginalization of ESR from the ‘common language’ of post-conflict justice is highly problematic because in these contexts violence overlaps with widespread poverty and deep inequality, with most victims facing poverty and destitution.Footnote 40 While victims’ preferences and priorities are not static and depend on their evolving circumstances and backgrounds, there is strong evidence to support the position that the poorer the victim, the more central ESR become to their claims for justice, even their top priority.Footnote 41 Ultimately, in the absence of ESR, transitional justice risks becoming a hollow experience for most impoverished victims.Footnote 42
2.2 How much transitional justice for socioeconomic wrongs?
Despite the importance of ESR and issues of distributive justice for societies in transition, there remains much disagreement about whether the field should expand beyond its traditional focus on the most serious violations of civil and political rights and directly deal with ESR. Since the mid-2000s, a growing body of scholarship has advanced proposals to expand the scope of transitional justice – ranging from the incorporation of ESR into the mandates of TRCs and criminal trials,Footnote 43 to the development of new mechanisms and processes aimed at galvanizing measures such as affirmative action and redistribution.Footnote 44 The field has also been reconceptualized in terms of ‘transformative justice’,Footnote 45 most recently tasked with delivering social justice in the face of ‘structural violence’.Footnote 46 In more recent years, the literature on transformative reparations has given new impetus to attempts to integrate ESR into the transitional justice agenda.Footnote 47 Underpinned by the principle that restoring the status quo ante for already disadvantaged victims would recreate unacceptable conditions of marginalization, powerlessness and inequality, this body of literature argues that reparations should include the guarantee of a range of ESR to help address the root causes of conflict and provide victims with a brighter future.Footnote 48
These proposals have been met with objections based on a stark reminder of the very fragile scenarios in which transitional justice is currently being implemented, namely societies with weak institutional capacity and under the influence of those responsible for past violations, who will not easily relinquish their positions of power and facilitate redistribution.Footnote 49 In these contexts, proponents of the dominant model argue that the holistic implementation of transitional justice can best serve distributive justice goals in modest and indirect ways, for example by reaffirming norms that have been violated.Footnote 50 Otherwise, it is argued that venturing into broader socioeconomic agendas – such as transformative reparations – risks not only disappointing victims’ expectations, but also diluting the specificity of the ‘victim’ category and their claims for justice.Footnote 51 The implicit argument is that the dominant model, imperfect as it is, is the best way to provide some justice for victims in times of transition, and that it is up to other actors and fields, such as social policy or development, to deal directly with ESR-related issues. This position is very much alive today beyond the academic literature, especially around the conference table and in the field.
2.3 At the heart of the impasse: The separation of reparations and ESR
Reparations are the key mechanism to address in this discussion. It is now clear that when it comes to international crimes the distinction between civil and political rights and ESR is untenable and the latter cannot be ignored.Footnote 52 Demands for transformative reparations for victims of sexual violence have permeated ICC reparations hearings, leading the ICC to acknowledge that reparations have ‘transformative value’Footnote 53 and sparking much debate about how such measures might eventually be put into practice.Footnote 54 Recent experience also shows that TRCs can investigate and acknowledge socioeconomic wrongs.Footnote 55 In all these cases, the difficult question is how to translate the recognition of socioeconomic wrongs into remedial action.
These operational difficulties are accompanied by conceptual challenges. The traditional principle of restitutio in integrum, which has traditionally guided reparations in judicial settings, is not an option, because it can impose financial burdens that post-conflict states would find impossible to meet.Footnote 56 Restitutio in integrum may also be unacceptable for victims who were already poor and marginalized before serious abuses, for whom the principle’s rationale of restoring the status quo ante is ‘[not] a place they wish to return in order to feel “whole”’.Footnote 57
In this context, the emerging practice of TRCs to consider the guarantee of ESR as a means of redress has been vigorously debated.Footnote 58 The paradigmatic case was the Peruvian TRC, whose internal discussions explored the possibility of conceptualizing reparations as primarily aimed at improving victims’ wellbeing through the guarantee of ESR. This alternative was ultimately rejected in a deliberative process that laid the conceptual groundwork for the separability thesis and clarified what the goal of reparations is in contexts of poverty and discrimination.Footnote 59 On the one hand, it was argued that such a proposal would give victims socioeconomic benefits to which they are already entitled as citizens, thus undermining their status as victims. On the other hand, it would raise questions of causation, as it is impossible to neatly separate the damage directly caused by the violation from the underlying social problems that amplify the consequences of wrongdoing, which victims and ordinary disadvantaged citizens share. In sum, the Peruvian TRC abandoned this broad approach to reparations because of the risk of diluting reparations into ordinary social policy and blurring the individual recognition of victims. While the Final Report mentions ESR in its recommendations for institutional reform and considers the guarantee of certain ESR to certain victims as reparations, it places the bulk of the responsibility for addressing ESR on ordinary social policy, beyond the remit of transitional justice mechanisms.Footnote 60 Significantly, this deliberation process made it clear that the main objective of post-conflict reparations is not to satisfy the needs and priorities that victims consider more important to them,Footnote 61 but the ‘expressive’ or ‘communicative’ goal of sanctioning state wrongdoing and providing recognition of wrongdoing.Footnote 62
Despite the centrality of this debate to the literature on transformative reparations, a thorough theorization – and critical analysis – of the separability thesis is often lacking, leaving this literature open to well-established critiques raised by the dominant model. For example, those who argue that reparations should include access to education and employment opportunities do not explain why these measures should not rather be seen as an expression of the general duty of the state to guarantee the ESR of ordinary citizens affected by violence,Footnote 63 within the framework of pre-existing state obligations under international human rights law.Footnote 64 Likewise, in advocating for employment opportunities for victims, proponents of transformative reparations may risk conflating the specific harms arising from serious human rights abuses with broader socioeconomic wrongs. From the perspective of the dominant model, the lack of separation between reparations and measures such as access to shared medical and educational facilities, or housing,Footnote 65 risks obscuring the individuality and distinctiveness of victims by providing services that are available to others. The few positions that explicitly try to square the circle, for example by suggesting that state authorities should put up a plaque or build a memorial when providing social policy in recognition of wrongdoing,Footnote 66 have been criticized as cosmetic by scholars who share the same theoretical assumptions that underpin the dominant model.Footnote 67
It is fair to say that this debate has reached an impasse where neither position is entirely satisfactory. On the one hand, those in favour of broadening the field have not fully explored and rebutted the separability thesis and the conclusion that the responsibility for addressing the ESR victims enjoy as citizens, important as it is, ultimately lies with mechanisms other than those of transitional justice. On the other hand, it is difficult to simply maintain the dominant mode, as it may be inconsistent for a field that purports to be victim-centred to claim that justice can be served while the often most important (socioeconomic) justice claims of victims remain unaddressed.Footnote 68 Challenging the conclusion that victims can be made ‘whole’ while remaining destitute requires a critical examination of the separability thesis, clarifying its place in the conceptual foundations of the dominant model and its application in post-conflict situations.
2.4 The separability thesis and the remaking of the field in post-conflict settings
The separation of ESR and reparations plays a decisive role for the remaking process of transitional justice and its application in post-conflict societies, which has not been subjected to critical scrutiny. To appreciate this, it is important to bear in mind that in the societies in which the field emerged, such as Chile and Argentina, the conflation of ESR and reparations was not an issue,Footnote 69 despite that reparation programmes included free access to health care and higher education.Footnote 70 Arguably this was the case because surviving victims and their families used to belong to the middle classes and could reject as ‘blood money’ the benefits offered by the regime they condemned.Footnote 71 In contrast, in conflict-affected societies impoverished victims do not necessarily maintain an adversarial relationship with the state and tend to approach reparations from ‘an angle of necessities’, welcoming state benefits.Footnote 72 Since states have attempted to discharge their obligations towards victims through ordinary social policy, scholars, and practitioners have adopted the separability thesis as the best way to address this new challenge.
The separability thesis is thus an offspring of the post-conflict encounter with transitional justice and plays two crucial roles in the argumentative strategy of the dominant model. First, it allows the ‘external coherence’ of the dominant model to be maintained.Footnote 73 As mentioned earlier, de Greiff considers that reparations represent the ‘material form’ of recognition that is owed to victims and can only be achieved in conjunction with the simultaneous application of other transitional justice mechanisms. From this perspective, dissociating reparations from the guarantee of ESR is a necessary step to preserve the individual recognition of victims, which risks being obscured by conflating their justice claims and interests with those of ‘ordinary citizens’.Footnote 74 In other words, the separability thesis is necessary to demonstrate to victims that their interests are taken to heart by the state and that the specificity of their situation is acknowledged. In so doing, it prevents state authorities from deceptively ‘repairing’ victims when in fact they are just delivering ordinary social policy.Footnote 75 Second, the separability thesis allows transitional justice to focus on pursuing short-term and more easily measurable goals, while passing ESR-related responsibilities to actors dealing with ordinary social policy or development.Footnote 76 The implementation of these policies is seen as fraught with uncertainty and complexity, and should therefore be kept at arm’s length from the objectives directly pursued by transitional justice, so as not to cast doubt on the effectiveness or credibility of its mechanisms.Footnote 77 Ultimately, the separability thesis renders justice initiatives that recognize the specificity of victims and their harms impervious to the failure of post-conflict authorities to address their ESR.
The marginal place of ESR in the dominant model is therefore a strategic choice that is integral to its conceptualization and application in conflict-affected societies. Challenging the conclusion that victims can be repaired while remaining destitute requires a critical approach to the separability thesis. To this end, the following section reconstructs the social and political conditions that led a ‘second generation’ of transitional justice advocates to justify the adoption of this thesis in Colombia and the path it took to consolidate itself internationally.
3. Encountering transitional justice in Colombia: The struggle over impunity before and after the Implementation of the Justice and Peace Law
Transitional justice was first implemented in Colombia during the 2000s as part of the demobilization process of paramilitary groups that culminated with the 2005 Justice and Peace Law. From the outset, the encounter with transitional justice was defined by the very real risk that atrocities committed by paramilitary groups would go unpunished.Footnote 78 This was a time when society at large was indifferent towards victims, if not sympathetic to paramilitaries, and when minority voices speaking out against impunity were dangerously stigmatized as ‘terrorists’ by senior ministers and former President Uribe himself.Footnote 79 To push back, supporters of victims devised a two-pronged argumentative and legal strategy, firstly invoking victims’ rights as a means of fighting impunity, and secondly using these rights to challenge the Justice and Peace Law in national and regional courts.
3.1 The rights to truth, justice and reparation: Fighting stigmatization with stigmatization
From the very beginning, the rights to truth, justice and reparation played a central role in the strategy of victims’ advocates against the Uribe government. This included defending the position that these rights constituted ‘a minimum but inescapable’ international law imperative, that is to say, a ‘hard or non-negotiable core’ that could not be avoided in peace negotiations.Footnote 80 At the heart of this argumentative strategy was the conviction that the consolidation of the democratic order required the exposure and repudiation of past atrocities and the stigmatization of the regime that committed them. In other words, autocratic stigmatization by the Uribe administration needed to be fought with democratic stigmatization.Footnote 81 To this end, some quarters emphasized the pro-state nature of the paramilitary groups and the tolerance, if not direct complicity of the military, political and economic establishment in abuses.Footnote 82 Recourse to the rights to truth, justice and reparation was explicitly conceived as a tool to make visible and repudiate the atrocities facilitated by the corrupt regime,Footnote 83 ‘preclud[ing] impunity’.Footnote 84
3.1.1 Before national and international courts
The second step in this anti-impunity strategy was to take victims’ rights before the courts and litigate against the recently approved 2005 Justice and Peace Law. Successful outcomes at the national level were followed by a series of cases brought before the Inter-American Human Rights System, which enabled the IACtHR to clarify the scope of victims’ rights under the American Convention and their primacy over national legislation.Footnote 85 Like domestic courts, the IACtHR became a critical ally of progressive forces defending victims’ rights, as the approach adopted in San José inspired and reproduced the internal drive to democratically stigmatize the corrupt regime. In various rulings, the IACtHR emphasized that the Colombian political and legal system gave rise to and legitimized the activities of paramilitary groups, making visible and repudiating systematic practices of state-sponsored violence against the civilian population.Footnote 86 In so doing, it rejected the Colombian government’s legal strategy of recognizing bona fide failures in the protection of the right to life while emphatically refusing to recognize collusion with paramilitary groups.Footnote 87 In this context, the IACtHR carried out its famous contextual analyses and creative interpretations of erga omnes obligations under Articles 1(1) and 2 of the American Convention to hold the state responsible for abuses initially thought to have been committed by third parties.Footnote 88
Democratic stigmatization by the IACtHR was also anchored in the symbolic power of an international declaration of state responsibility, as defended by members of civil society in Colombia who appeared as expert witnesses before the IACtHR. For example, the Court rejected the government’s position that the rights of victims could be fulfilled by the Justice and Peace Law and that a decision by the Court was not necessary, with the IACtHR arguing that an international declaration of state responsibility has incomparable ‘symbolic effects’ to ‘condemn’ past wrongdoing.Footnote 89 Furthermore, the IACtHR reiterated that when state-led violence is involved, an ordinary declaration of state responsibility is not enough, which led it to relaunch the concept of ‘aggravated responsibility’ to express the special rejection that must accompany these abuses.Footnote 90 This understanding of the state-individual relationship influenced the IACtHR’s post-conflict jurisprudence in years to come throughout the region. It is more concerned with sanctioning state interference in civil and political rights than with developing the state’s positive ESR duties established in the American Convention (Article 26).Footnote 91
In sum, the fierce struggle over impunity led to the configuration of society as a contestation space between two clearly defined sides. The binding nature of victims’ rights was not open to compromise and democratic forces did not give up until non-democratic actors were defeated. In this polarised situation, at the intersection of victims’ activism and international law, the debate on reparations and ESR broke in.
3.2 Reaching new heights: The restatement of the separability thesis and its international consolidation
In an attempt to address the increasingly visible failure of the Justice and Peace Law to provide reparations to victims, the Uribe government issued Decree 1290 in 2008, which created an administrative reparation programme that entitled victims to a lump sum payment of between 27 and 40 times the statutory monthly minimum wage. This decree also introduced provisions which, as discussed below, contradicted the separability thesis in two important respects. First, they established that the guarantee of certain ESR should be considered a means of reparation; second, they based reparation on the principle of solidarity, not state responsibility. As the next sub-section explains, these provisions were heavily criticized by civil society, which repeated the two-pronged strategy that had been so successful in previous years.
3.2.1 The dispute over the legal basis of reparations: State responsibility or social solidarity
Victims’ advocates criticized Decree 1290 because they felt that by underpinning reparations on solidarity, the state was attempting to shrug off its responsibility for past abuses and to grant reparations as a matter of ‘liberality’.Footnote 92 This approach was not valid because, according to them, the state has a legal responsibility to provide reparations for serious violations committed under its jurisdiction, in accordance with the jurisprudence of the IACtHR on obligations to respect and guarantee rights, among other international instruments.Footnote 93 Because of this, they considered that reparation programmes that did not acknowledge state responsibility were a legal oxymoron, ‘a contradiction in terms’.Footnote 94 In a context where stakeholders were classified as either ‘allies’ or ‘opponents’ of victims, anyone attempting to justify reparations on the basis of solidarity not only defied international law and logic, but also risked being perceived as a spokesperson for ‘positions most similar to those of the government’.Footnote 95 Therefore, the debate over reparations was never truly distinct from the bitter feud between civil society and the Uribe government, which began some years earlier. Anti-impunity emerged as the yardstick by which the influential network of victims’ advocates classified different approaches to reparation, privileging those deemed most legitimate for advancing accountability and stigmatizing the government of the day.
Crucially, many of the considerations arising from the political contingencies in Colombia were reproduced at the international level, consolidating a model with far-reaching implications. The reliance on logic to privilege a particular understanding of reparations, for example, was echoed by the UN Special Rapporteur in 2014, who wrote in a report to the General Assembly that providing redress without recognizing responsibility is an attempt to ‘do the impossible’, such as offering an apology without acknowledging any wrongdoing.Footnote 96 The typology of duties to respect and guarantee rights, or more precisely to protect rights that was used in Colombia to frame the scope of the state’s response after widespread violence, was also repeated by the Special Rapporteur. By stating that reparations must restore ‘trust in institutions that either abused victims or failed to protect [victims]’,Footnote 97 all the weight is placed on the protection of negative freedom and stigmatizing the state for its misdeeds, overshadowing the state’s positive duties to provide against want and need in the aftermath of widespread violence. Overall, the encounter with transitional justice in Colombia inspired the work of the newly appointed Special Rapporteur, with the Justice and Peace Law becoming the object of criticism because the benefits it provided were not granted ‘as a way of satisfying the legal obligations of the state and the rights of the victims, but as an expression of solidarity with them’.Footnote 98
The encounter with transitional justice in Colombia also created the conditions for the Inter-American Commission to elaborate on the legal basis for reparation. In 2008, the Commission published the General Guidelines for an Integral Reparation Policy, in which it rejected the Colombian authorities’ position that reparations are ‘an expression of a political commitment and humanitarianism with the victims of the conflict’. The Commission rejected this view by arguing, as did civil society actors, that ‘the concept of reparation finds its roots in legal duty, unlike an ex gratia payment’.Footnote 99 Similarly, the Inter-American Court has denied the reparative value of compensation programmes that do not recognize the authorities’ failure to respect and protect rights, treating them, as the Special Rapporteur did, merely as a ‘crime insurance policy’.Footnote 100
3.2.2 The dispute over the separation of reparations and ESR
The second round of the dispute was triggered by provisions in the Justice and Peace Law and in Decree 1290 that established that the guarantee of ESR should be considered a means of redress. Scholars and activists criticized these provisions arguing that the government was lumping together humanitarian aid, social policy, and reparations, deceptively presenting these measures as a commitment to victims. They emphasized that general social policy does not have a reparatory effect because it is not specifically aimed at overcoming the impact of violations and does not recognize the specific harm victims have endured.Footnote 101 This line of reasoning found its way into the jurisprudence of the Constitutional Court, which accepted the submission made by victims’ supporters and sanctioned the separability thesis in Judgment C-1199. The Court went on to say that conflating the two obligations risked ‘reducing the scope of reparation due to victims, since in the quantification of the latter everything related to social services could be discounted’.Footnote 102
The separability thesis was ready to be consolidated internationally in UN special procedures and the Inter-American Human Rights System. For example, the Special Rapporteur on Truth, Justice, and Reparation reproduced the tripartite division of humanitarian assistance, ESR and reparations elaborated by the applicants for the Court’s consideration and acceptance in Judgment C-1199. While asserting that the impact of all three measures is enhanced by their mutual and coordinated application, the Special Rapporteur stressed the importance of ‘keeping in mind that these are distinct sources of obligation’ and emphasized that, unlike humanitarian assistance and ESR, the obligation to provide reparations must always ‘be accompanied by an acknowledgement of responsibility’.Footnote 103 He went on to say that, for an act to express responsibility and be considered reparation, it is important to take into account the type of benefits that are distributed among victims. In perhaps the strictest formulation of the separability thesis, de Greiff dismissed the reparative value of collective reparation programmes arguing that the guarantee of ESR entails the provision of goods and services that are ‘non-excludable’, this is, goods and services that are difficult to prevent non-victims from consuming. Since these goods and services are intended to address needs ‘to which the beneficiaries have a right as citizens, not necessarily as victims’, the guarantee of ESR does not express an acknowledgement of responsibility and cannot be considered reparation.Footnote 104
The encounter with transitional justice in Colombia also created conditions for the introduction of the separability thesis into the jurisprudence of the IACtHR. In a case brought to the IACtHR by victims’ lawyers, an ad hoc Colombian judge introduced the distinction between humanitarian assistance, ESR, and reparations in a separate opinion. He also warned of the risk of conflating these measures, since it would allow the government to discharge its obligation to make reparations through ordinary social policy,Footnote 105 as the Constitutional Court would recognize in the same period in Judgment C-1199. This position was later fully adopted by the IACtHR, noting that ‘social services that the state provides to individuals cannot be confused with the reparations to which the victims of human rights violations have a right’.Footnote 106
However, the introduction of the separability thesis into the jurisprudence of the IACtHR has been fraught with tensions and difficulties arising from its ongoing practice to order measures related to ESR for civil and political rights violations, such as development programmes as a means of redress.Footnote 107 To overcome these tensions, the IACtHR reiterates de Greiff’s position that victims should receive special treatment ‘meant as redress’, including access to goods and services not available to non-victims. More precisely, it contends that victims are entitled to comprehensive development plans which, to qualify as reparations, must be distinct from the standard policies ordinarily implemented in the region.Footnote 108
In any case, the Colombian experience marked a shift in the Inter-American Human Rights System’s approach to reparations and ESR. In previous jurisprudence, the Commission considered friendly settlements in which the state assumed a general obligation to guarantee certain ESR (i.e., housing, health facilities, employment, secondary education) as measures of collective reparations in line with the ACHR.Footnote 109 In turn, in early judgments, the Court considered the adoption of general socioeconomic measures regarding education, health, or employment as a legitimate means of reparation, in addition to monetary compensation.Footnote 110
3.3 Repaired but poor victims after decades of transitional justice in Colombia
In light of the UN Secretary-General’s 2004 report, which laid the groundwork for the dominant model by calling on authorities to implement ‘an appropriately conceived combination’ of measures related to truth, justice, reparations and guarantees of non-recurrence,Footnote 111 it is not far-fetched to conclude that transitional justice has already been served for a considerable number of victims in Colombia. Under what is perhaps the world’s leading reparations programme,Footnote 112 considered to be in line with ACHR standards,Footnote 113 millions of victims have received monetary compensation plus other means of redress, and funding has been secured to continue this scheme until 2031, without ruling out future additions.Footnote 114 The TRC published the 2022 Final Report, which complements similar truth-telling activities undertaken by the Historical Memory Group, as part of a myriad of commemorative activities and reports that have highlighted the special status of victims, individualized their harm and given them a voice.Footnote 115 On the justice front, top commanders of guerrilla movements and high-ranking military officers have faced victims and society, acknowledged wrongdoing and asked for forgiveness.Footnote 116 They now await sentencing. Likewise, some leaders of paramilitary groups are serving prison terms and others have recently engaged in truth-telling activities.Footnote 117 Although a small and concentrated number of municipalities remain affected by violence and guarantees of non-recurrence remain illusory for victims living there, the situation is incomparable to that of the early 2000s, when almost all municipalities in the country witnessed human rights violations such as forced displacement.Footnote 118 While certain groups of victims continue to be threatened and killed for their advocacy activities, such as human rights defenders and land claimants, the vast majority of victims have not suffered fresh serious violations.Footnote 119
Yet despite the remarkable achievements in terms of truth, justice, reparations, and guarantees of non-recurrence for a large number of victims, the horizon remains bleak for most of them, as destitution, poverty and inequality persist.Footnote 120 The same country that is at the forefront of transitional justice has a victim population that almost entirely overlaps with those living in poverty and extreme poverty,Footnote 121 a population that is affected by stark inequalities comparable only to those of the countries with the highest Gini index.Footnote 122 The implementation of territorial development programmes in the isolated municipalities most affected by violence following the 2016 Peace Agreement has not reversed this trend, nor does it seem appropriate for the majority of victims who have resumed their lives in the poverty belts of the main cities.Footnote 123 Other ‘transformative’ programmes agreed in 2016, such as land reform, do not represent a breakthrough because they are largely the restatement of previous legislation.Footnote 124 The stagnation in the guarantee of victims’ ESR is such that, in 2023 – two decades after the encounter with transitional justice, and another since most victims had fallen into an inescapable spiral of conflict-related poverty – the Petro government introduced a bill to Congress focusing on the ESR of victims.Footnote 125 The bill was swiftly shelved and received much less attention in the media, academia and civil society than the Justice and Peace Law and the Peace Process, which sparked a truly national debate. The possibility of reckoning with socioeconomic injustices and resource distribution remains silenced by the anti-impunity discourse, and the fate of those affected by violence has for too long been left to the well-intentioned but clearly insufficient steering work of the courts.Footnote 126
The disconnect between transitional justice and ESR is perhaps the real problem preventing victims from celebrating the results so far, rather than the time it is taking to fulfil reparation promises. Indeed, as early as 2008, Rettberg’s pioneering work showed that improved living conditions ranked as the top priority for most victims, clearly ahead of reparations, trials, and measures related to reconciliation.Footnote 127 Surveys focusing on IDPs show that when asked how they would like reparations to be made, they choose a range of measures that partially make them better off, whether through monetary compensation, a permanent pension, or restitution of lost property. IDPs tend to view reparations predominantly through an economic lens, often without ascribing symbolic values associated with accountability and recognition of wrongdoing.Footnote 128 It should be noted that in Colombia,Footnote 129 as in other places,Footnote 130 victims tend to use the money they receive as compensation to fulfil ESR, especially housing, and that victims often resent the fact that authorities spend money on symbolic measures instead of using the same resources to meet their daily needs.Footnote 131
4. Lessons from the encounter with transitional justice in Colombia
4.1 Towards a grammar that articulates victims’ ESR claims as reparation claims
The encounter with transitional justice in Colombia exemplifies the extent to which the dominant model’s separability thesis and impoverished victims speak a different language. Because the former assumes that victims primarily need recognition of wrongdoing and reassurance that their interests are taken to heart, it emphasizes the symbolic effect of reparations and overlooks the fact that most victims approach reparations instrumentally to guarantee their ESR. While the separability thesis stresses the importance of acknowledgment by the state of past wrongdoing, impoverished victims expect the state to be an active guarantor of ESR in the present.
This evaluative dissonance is the result of imposing on post-conflict contexts the same grammar that was developed in the early days of the field to articulate victims’ demands for justice, particularly when stakeholders sought to justify the trial of a handful of Junta members in Argentina. According to Jaime Malamud-Goti, senior advisor on human rights and legal affairs to Argentina’s former President Raúl Alfonsín, criminal sanctions were justified because they eliminate power differences between ‘those who had control over other person’s lives and those whose existence was at their mercy’, returning victims ‘to full membership in society’.Footnote 132 By publicly stating that the perpetrator’s behaviour is illegitimate and that victims have been ‘wronged’, he continues, punishment also helps restore the identity of citizens whose experience of serious abuse undermines their sense of self-worth and respect.Footnote 133 As Malamud-Goti rightly points out, these are ‘expressive’ or ‘communicative’ consequences of punishment that have little to do with the material wellbeing of beneficiaries.Footnote 134
Despite the contextual differences between these settings and conflict-affected societies, the notion of ‘victim’ and their claims for justice have been understood in ColombiaFootnote 135 and at the UNFootnote 136 using a fairly similar anti-impunity conceptuality. Certainly, this narrative may have suited the experience of victims and families who suffered disappearances, torture, killings, and persecution by the Colombian security forces for their leftist political positions, who like victims in Chile and Argentina, used to belong to the middle classes (i.e., Unión Patriótica).Footnote 137 However, it silenced the vast majority of impoverished victims that were not primarily in need of recognition of wrongdoing.Footnote 138 Introduced into the UN machinery, this understanding of victims and their claims for justice ends up informing the recommendations made to countries all around the world.
This is a top-down framework that is problematic for the following reasons. First, it may overemphasize the ‘victim’ identity and construe victims’ claims for justice as deriving exclusively from direct violations of bodily integrity during conflict,Footnote 139 replacing a grammar capable of making visible and articulating the everyday (socioeconomic) concerns of victims with one that serves to justify punishment.Footnote 140 Fieldwork in Colombia shows that the importance attached to the holistic application of transitional justice measures for victims to move on with their lives ‘seems to pertain to macro-level socio-political processes rather than everyday coexistence’.Footnote 141 Second, the dominant model is based on the idea that victims’ distinctiveness can only be preserved by providing them with exclusionary benefits, i.e., goods and services that they do not share with ordinary people. In doing so, it may impose an overly rigid understanding of reparations that favours separation and exclusion and fails to take into account the situation of those victims who understand reparations as socioeconomic inclusion,Footnote 142 or those who, before their voices are filtered through the lens of transitional justice, ‘use the language of reparations’ to articulate their claims for ESR.Footnote 143 Third, this framework necessarily portrays victims in an adversarial relationship with the state, which provides an incomplete picture in cases where non-state actors are equally or more responsible for abuses than state authorities, as has been the case in Colombia and Peru.Footnote 144 This offending state-victimized individual paradigm is also inappropriate for any attempt to take ESR seriously in post-conflict settings, as it reinforces the ‘liberal internationalist’ peacebuilding paradigm and its traditional neglect of duties to fulfil ESR,Footnote 145 in disregard of international law treaties such as the ICESCR. It is important to bear in mind that in transitions other than those to democracy in the 1980s and 1990s, ‘breaking with the past’ means for disadvantaged victims ‘a set of economic and social policies that deliberately place state power at the centre of guarantees for social justice’.Footnote 146
It is necessary to develop a legal grammar that articulates victims’ socioeconomic claims as reparation claims in times of transition, which includes taking into consideration the poverty and discrimination that affect them in their daily lives, as well as their interactions with ‘ordinary citizens’. In carrying out this task, it is important to move away from the idea that, under international law, guaranteeing the rights of victims is boiled down to the holistic implementation of the four pillars of transitional justice. This requires rethinking the state-individual relationship beyond the offending state-victimized individual paradigm and exploring other bodies of international law that recognize the centrality of ESR and have traditionally been neglected in the field of transitional justice.
4.2 Re-rethinking the individual-state relationship under international law: Expanding ‘victims’ rights’ to include the ICESCR
The idea that ‘victims’ rights’ are primarily the set of rights to truth, justice, reparation, and guarantees of non-repetition is certainly rooted in international law. However, the position taken in Colombia that this set of rights must be prioritized and strictly applied, otherwise international responsibility would be compromised, needs to be considered carefully.Footnote 147 In the context of the current discussion, Tomuschat considers that the extremely modest number of states that responded to the UN Commission on Human Rights’ invitation to comment on draft versions of the Basic Principles and Guidelines in the early 2000s, and the ‘very discouraging’ response from the states that did so, demonstrated wider state reluctance to embrace the idea of an individual right to truth, justice and reparation.Footnote 148 The eventual adoption of the Principles and Guidelines in 2005, at the height of the fight against impunity in Colombia, did not change this situation significantly, as this instrument emphasizes that it does not create new international obligations for states but rather identifies different ways to implement existing ones.Footnote 149
Crucially, in order to fill the various gaps in positive international law that make reparations to victims patchy, especially in the case of violations not attributable to the state, the Basic Principles and Guidelines drew on the very same concept that advocates in Colombia at the time considered to be at odds not only with international law, but also logic and morality: the principle of solidarity.Footnote 150 According to the Chair and Rapporteur Salinas, who took over from the previous drafters van Boven and Bassiouni, the Principles and Guidelines do not seek to hold states responsible for policies and practices for which they are not responsible, including those of non-state actors, but to allow ‘victims to seek redress on the basis of social and human solidarity’.Footnote 151 Moreover, according to BassiouniFootnote 152 and Salinas,Footnote 153 the very possibility of adopting a victim-centred perspective in the Principles and Guidelines was possible thanks to the concept of ‘social and human solidarity’ – a position that is recognized throughout the preamble of this instrument. In sum, contrary to the position defended by victims’ advocates in Colombia in the mid-2000s, Tomuschat considers that the Principles and Guidelines ‘clearly indicate’ that ‘no general obligation is deemed to enjoin states to make reparation’ under international law, nor is there a ‘corresponding [general] right of individuals’.Footnote 154
The strategic emphasis on the rights to truth, justice and reparation in Colombia went hand in hand with the marginalization of voices and alternatives that did not fit into the anti-impunity paradigm.Footnote 155 This was the case because, in the polarised context in which the encounter with transitional justice took place, there was little room within progressive quarters to question ‘the existence of a minimum but non-negotiable content of legal standards on victims’ rights’, since this position had to be defended ‘against attacks’ from dominant forces.Footnote 156 As a result, theoreticalFootnote 157 and legal frameworksFootnote 158 that prioritized ESR and distributive justice in the state’s response to widespread violence were sidelined from the debate. These frameworks were rejected either because they allegedly contradicted international law,Footnote 159 or because they approached the state’s response in terms of positive duties and social solidarity, thereby failing to stigmatize the state for its past wrongs.Footnote 160
At the international level, it is also possible to identify frameworks that, despite being clearly focused on the ESR of people affected by violence, are marginalized from discussions on transitional justice because they do not fit the traditional offending state-victimized individual paradigm underpinning the dominant model.Footnote 161 This is arguably the case of the ICESCR and its interpretation by the CESCR. What follows explores plausible reasons for this neglect, which are not explicitly discussed in the transitional justice literature, and presents a framework for understanding victims’ claims for ESR as reparations claims based on the CESCR’s work on conflict and post-conflict settings.Footnote 162
First of all, it should be noted that the CESCR, when referring to people affected by armed conflict throughout its Concluding Observations (COs), tends to blur the distinction between the categories of ‘ordinary citizens’ and ‘victims of serious abuses’, using the latter terminology only sporadically.Footnote 163 In what can be interpreted as a decision to prioritize the everyday concerns of those affected by widespread violence, what drives the CESCR’s attention is the lack of legal status of the stateless,Footnote 164 the uprooting of the refugee,Footnote 165 or the homelessness of the displaced.Footnote 166 In contrast to the position of the Special Rapporteur on Truth, Justice and Reparation,Footnote 167 the Committee is primarily concerned about the lasting suffering that these people may endure, like few others can, rather than the need to recognize wrongdoing in relation to serious abuses. In some of the few cases where the Committee recommends states to recognize people affected by conflict as ‘wartime victims’, it is to ‘extend to them the status of an eligible category of persons for social protection’.Footnote 168 In other words, and in contrast to the separability thesis, recognition of ‘victim status’ seeks to guarantee the ESR of people affected by armed conflict. It is not a means of differentiating ‘victims’ from ‘ordinary citizens’ by justifying for the former access to goods and services that are denied to the latter.
Second, the CESCR attaches equal importance to negative and positive duties, making no difference whether specific shortcomings are the result of the state’s failure to respect and protect rights in the past, or a failure to fulfil them in the present. For example, a person who has been forcibly evicted by state authorities as part of a systematic plan to promote ethnic cleansing is equally entitled to remedies, such as alternative housing and/or compensation, as someone who has been evicted by a private constructor who participates in infrastructure projects to hold the Olympic Games.Footnote 169 While proponents of the separability thesis reject the guarantee of ESR as a means of redress – arguing that these are goods that ordinary citizens cannot be excluded from consuming – the Committee recognizes adequate alternative housing as an appropriate remedy for forced evictions, particularly in cases where individuals are unable to secure housing for themselves.Footnote 170 Crucially, in these cases adequate housing is likely to require a broader housing strategy that equally takes into consideration the needs of people facing homelessness or related scenarios for reasons other than forced eviction.Footnote 171 With this approach – unlike the dominant model of transitional justice – the Committee places existing shortcomings at the centre of state response, thereby resisting the creation of clear-cut distinctions and hierarchies between victims and other vulnerable individuals not directly affected by violence.Footnote 172
The Committee’s practice can be understood as providing a grammar capable of addressing the everyday concerns of people affected by violence. This is possible by framing the situation of those affected by widespread violence at the intersection of patterns of violence, poverty, and discrimination, patterns that must be confronted through economic and social policies that position state power as central to the guarantee of ESR. For example, in a recent concluding observation on Ukraine, the Committee noted that IDPs are disadvantaged compared to non-displaced communities, and that internally displaced women face additional burdens than internally displaced men in overcoming poverty due to gender barriers such as unpaid domestic and care work.Footnote 173 The Committee understood this situation to be the result of discrimination against IDPs by state policies and regulations in the areas of health care, employment and housing within the meaning of Article 2(2) of the ICESCR. To address this situation, the Committee recommended a series of measures that are both gender-sensitive and responsive to the specific needs of IDPs in the context of host communities not affected by violence.
Crucially, behind the practice of the CESCR lies a framework that lends itself to the articulation of ESR claims as reparation claims. It is true that the Committee tends to avoid the terminology of ‘violations’ and that the language of ‘remedies’ and ‘reparations’ is used sparingly throughout its COs.Footnote 174 However, there is already sufficient work done by distinguished experts in international law to support the view that, behind the ‘diplomatic’ language adopted by the Committee, it is possible to spell clear violations of ESR.Footnote 175 The Committee’s recommendations to address situations clearly incompatible with the ICESCR that preceded and/or were exacerbated by armed conflict, such as those related to discrimination against IDPs in Ukraine, can be understood as expressing an obligation to end and remedy violations of the ICESCR.Footnote 176 Indeed, in another recent CO on the Central African Republic (CAR), the Committee considered that the recognition of ESR can not only contribute to alleviating underlying causes of the conflict such as inequalities, but also ‘play a role in the components of transitional justice related to reparations’.Footnote 177 The adoption of the language of ‘violations’ and a more developed remedial practice, at least for ‘discrete’, ‘short term’ and ‘simple’ violations of the ICESCR,Footnote 178 would enable the Committee to adopt a more concrete and tangible approach in its COs on conflict-affected societies. In so doing, it could avoid the practical and conceptual difficulties of identifying and remedying violations of the obligation of progressive realization.Footnote 179
Certainly, the adoption of the Optional Protocol to the ICESCR promises to shed new light on these issues. The fact that the CESCR has adopted the typology of the Basic Principles and Guidelines in certain General Comments to frame its approach to remedies and accountability,Footnote 180 as well as partially in the individual petition system,Footnote 181 is a strong statement against the traditional neglect of ESR, as this soft law instrument and the like have traditionally been used to champion civil and political rights under the traditional offending state-victimized individual paradigm, as discussed above.Footnote 182 However, the extent to which this individualized approach is well suited to addressing the post-conflict dilemmas that have haunted the field for decades remains to be seen, as the Committee has so far focused on a few ESR in states that are largely at peace.Footnote 183
To sum up this section, it is useful to distil the core features of the approach to ESR and reparations advocated in this article, underscore its divergence from the dominant transitional justice model, and clarify its relationship to the literature on transformative reparations discussed earlier.
4.3 The way forward: Anchoring transformative reparations in the ICESCR
Thus far, this article has departed from the offending state-victimized individual paradigm that shaped the emergence of the field and has been instrumental in prioritizing an anti-impunity agenda. According to this approach, the ‘expressive’ or ‘communicative’ function of punishment is central to recognizing wrongdoing and sanctioning state misconduct. In countries like Argentina, ESR occupied a marginal position due to the socioeconomic profile of victims, who predominantly belonged to the middle classes and maintained an adversarial relationship with the state. The ‘victim’ identity relies heavily on direct violations of bodily integrity, which in turn justifies special/differential treatment for victims, such as access to goods and services denied to non-victims, in order to preserve their distinctiveness. The rigid separation between reparations and ESR is rooted in this logic and continues to shape dominant approaches in the field.
Rather than imposing the rationale that shaped early transitional justice interventions on conflict and post-conflict settings, such as Colombia, this article interprets the ICESCR and the CESCR’s work to integrate the often-overlooked socioeconomic concerns of victims into the ‘common language of justice’ for the aftermath of widespread violence, first articulated by the UN Secretary General in the 2004 report.Footnote 184 This reorientation is achieved by decentring the notion of ‘victim’ and their justice claims from a narrow emphasis on direct violations of bodily integrity, as well as from the retributive rationale employed in Argentina to legitimize punishment. Instead, the approach advanced here situates the ‘victim’ notion within the broader context of everyday deprivation, thereby allowing the language of reparations to serve as a vehicle for articulating claims to ESR and socioeconomic inclusion. Under this account, negative and positive duties carry equal normative weight, requiring state response to acknowledge and address the vulnerabilities of disadvantaged groups without drawing clear-cut distinctions between victims and other vulnerable individuals not directly affected by violence.
Contrary to the critique of transformative reparations outlined in Section 2.3, the approach advocated here does not mean ignoring ‘victim status’ but rather reinterpreting it in the context of the poverty and discrimination that affect the daily lives of people affected by violence. Similarly, dissociating reparations from the overall strategy of blaming perpetrators does not necessarily entail denying the value of the ‘expressive’ or ‘communicative’ objectives championed by the dominant model. Other accountability mechanisms, including symbolic measures, can be mobilized to sanction state wrongdoing and recognize specific harms.
While this proposal diverges from the dominant model and the holistic application of transitional justice’s traditional pillars, it opens new avenues for exploration, particularly with regard to the crucial role that the ICESCR can play in underpinning the literature on transformative reparations. This is the case not only because of the latter’s longstanding interest in linking reparations directly to the guarantee of ESR, as explained above, but also because more recently, the transformative reparations literature has focused on an intersectionality framework that resists the isolation of the ‘victim’ category from poverty and discrimination, in line with the approach taken by the CESCR.Footnote 185 Furthermore, grounding transformative reparations in the work of the CESCR – rather than in the punitive paradigms underlying the ICC and the IACtHR – helps prevent transitional justice from reinforcing ‘coercive human rights’ or ‘human rights penality’: the problematic tendency whereby human rights standards ultimately mobilize, depend upon, and foreground the coercive and carceral apparatus of states.Footnote 186
4.4 Anticipating familiar realpolitik objections
It is common to criticize arguments for the expansion of the field of transitional justice on the grounds that, although these arguments are correct at the level of legal analysis, they fail to take due account of the constraints that context imposes on such demands. Some of these general critiques, especially those related to institutional capacity, have already been persuasively addressed from an ESR perspective and will not be discussed again.Footnote 187 The purpose of these final remarks is to focus on some of these objections from the perspective of the critique of the separability thesis.
It is clear that lifting people affected by violence out of poverty requires redistribution, economic reform and similar policies that go beyond the law and are likely to encounter ‘the same types of automatic political resistance by privileged groups that non-transitional bids to tackle corruption or inequality have traditionally incurred’.Footnote 188 Given this situation, the question arises as to which framework, the dominant model or the proposal analysed above, is more appropriate to support incremental change, or at least not to further complicate matters in the struggle for social justice and the improvement of the living standards of people affected by violence.
The separability thesis reinforces traditional misconceptions about ESR in human rights discourse, which in one way or another undermine stakeholder engagement with victims’ ESR. As Schmid and Nolan have already identified, misconceptions about the nature of ESR, such as that they are unaffordable, or that they are programmatic, aspirational, and ultimately non-legal claims, are central to the work of transitional justice scholars, some of whom are proponents of the separability thesis.Footnote 189 Perhaps the best example of this is Waldorf’s position that, unlike reparations, the guarantee of ESR is a ‘post-transitional’ effort exclusively guided by political deliberation and distributive justice considerations.Footnote 190
The outcome of this reasoning is a justification for post-conflict institutional inertia regarding ESR. In Colombia, as already discussed, a decisive response to the poverty affecting victims has been postponed for almost three decades and remains secondary to the objectives of the dominant model.Footnote 191 In Peru, the TRC’s recommendations for institutional reform to promote ESR did not take off because they fell prey to the misconception that these rights did not impose real obligations on authorities, allowing them to defer efforts in this area.Footnote 192 By shifting the responsibility for addressing ESR to other actors, the separability thesis also creates grey areas where other policies that indirectly but significantly affect victims’ ESR are left without a framework to assess compliance from the perspective of victims.Footnote 193 Finally, the separability thesis contributes to the alienation of civil society actors focused on ESR from transitional justice discussions and initiatives, excluding them from the implementation phase. In Peru, when the recommendations of the TRC began to permeate in some way the institutional life of the state, actors with the political will to work for victims’ ESR were excluded from the state apparatus.Footnote 194 Comparing transitional justice arrangements in South Africa and Tunisia, S. Gready argues that the broader the scope of reparations, the greater the involvement and influence of trade unions and other civil society actors in the struggle for social justice.Footnote 195
Transitional justice fills an important gap in the international response to post-conflict situations, and it is unlikely that other international actors will have the will and develop the appropriate frameworks to address victims’ claims for ESR as justice claims. What distinguishes transitional justice from other fields dealing with conflict and post-conflict situations, such as peacebuilding, is that it introduces a victim-centred and human rights-based grammar to the discussion, often counterbalancing other post-conflict imperatives.Footnote 196 While the UN Development Program and the World Bank have traditionally focused on macro issues such as economic recovery and growth, transitional justice puts victims and their rights into the spotlight.Footnote 197 With its strong focus on victims and human rights, transitional justice is endowed with moral, diplomatic, and financial resources that might otherwise be lacking.Footnote 198 It is difficult to see how other actors will take the lead on these issues if transitional justice does not.
5. Concluding remarks
The dominant model of transitional justice prioritizes victim recognition and acknowledgement of state wrongdoing over the often more important day-to-day concerns of impoverished victims, which are inextricably linked to guaranteeing their ESR. This strategic choice, which is crucial for the remaking of the field and its application in post-conflict settings, is largely possible thanks to the separability thesis and its core tenet that ESR and reparations are conceptually distinct, and that the guarantee of ESR should not be considered a form of reparation. The consolidation of this thesis was in large part the result of the encounter with transitional justice in Colombia, where a second generation of transitional justice advocates resorted to a legalistic and prescriptive understanding of victims’ rights as a means of fighting impunity and stigmatizing the regime of the day. While this legalistic strategy may have been contextually justified in the short term given the country’s power dynamics, the reification of the separability thesis led to the imposition of a top-down approach sanctioned by international law that discourages taking ESR seriously.
Challenging the separability thesis requires rethinking the state-individual relationship beyond the traditional offending state-victimised individual paradigm that informed early transitional justice interventions. This shift requires reclaiming the value of positive duties and state power in promoting social justice, with reparations focused on decisively making victims better off through the guarantee of ESR. Against this backdrop, the literature on transformative reparations is shielded from critiques rooted in the separability thesis. Furthermore, the ICESCR offers a normative basis, hitherto unexplored, to contest the conclusion that victims can be ‘made whole’ while remaining destitute.
This article has not overlooked the significant challenges inherent in ensuring ESR, whose full realization depends on changes in the economic model and the distribution of resources that law alone cannot achieve. However, the approach advocated here provides better support for incremental change as it counteracts some of the shortcomings of the dominant model. The main difficulty with the latter is not only that it offers very little challenge to the conclusion that victims can be repaired while remaining poor. Moreover, the separability thesis can justify inaction, alienate civil society actors focused on ESR and ultimately leave the protection of ESR orphaned at both the national and international levels.
The perennial debate on transitional justice and ESR can avoid the impasse that has plagued the field for so long if it puts the separability thesis to the test, rather than taking it for granted and using it as an underlying argument for criticizing proposals to expand the field.
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