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Transitional Justice: A New Discipline in Human Rights

Last modified: 18 January 2010
Kora Andrieu

January 2010

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Kora Andrieu, Transitional Justice: A New Discipline in Human Rights, Online Encyclopedia of Mass Violence, [online], published on 18 January 2010, accessed 18 December 2014, URL : http://www.massviolence.org/Transitional-Justice-A-New-Discipline-in-Human-Rights, ISSN 1961-9898

Distribution and Development: Addressing the Root Causes of the Conflict

a) A forward looking policy

Reparation policies are essentially backward looking. Their claims are rooted in commemorative projects, calling attention to the past mistreatment of individuals in an attempt to recognize and repair this victimization. To that extent, reparations are not connected to current economic disadvantage: this focus on the past is sometimes considered as a serious limitation to their healing power. South Africa is a telling example of the limits of restoration and timely reparation programs without longer termed adjustment policies to address the economic and social dimension of apartheid.

«How much reconciliation can be achieved if, in post-apartheid South Africa, Whites admit that their economic, social, and political status was based on a morally bankrupt system but then refuse to accept redistributive taxation?» (Aukerman, 2002: 83).

TRCs have therefore been criticized for the paucity of their concrete effects (Chapman and Van der Merwe, 2008). More than ten years on, South Africa is not the «rainbow nation» that the designers of the TRC wished for. Black people are still economically marginalized. Indeed, while 61% of Black South Africans live in poverty today, only 1% of Whites do (May, 1998). According to the UNDP, Whites in South Africa have the living quality of Spain, and Blacks of the Democratic Republic of Congo. The South African TRC has been blamed for that failure, for having focused too much on gross human rights abuses rather than on the suffering experienced daily by Blacks, and the benefits enjoyed by Whites as a result of those systemic structural injustices (Mamdani, 1996: 3). The Whites, as beneficiaries, were never made accountable.

As a result of this deception, many people have argued that programs of redistributive social justice are a more appropriate response to the past than TRC hearings: the money spent on creating the Commission would have been better spent in making victims’ lives better concretely, for instance through community service delivery in the townships. This argument, based on the structural nature of the violence, raises the question of accountability: if what we are moving away from is not simply a «regime of criminals» but a «criminal regime», should everyone be held responsible? (Rosenberg, 1998: 400) Should only the main perpetrators be named? Or also those who made the violations possible, those who created the structural climate and ideology, or who simply benefited from that climate? In that case, the argument behind distributive policies is that TJ should not only deal with physical abuses, detention, torture, or murder, but also with other forms of injustices: forced removals, pass laws, broken families, and land occupation (Mamdani, 1996). Victims should then be redefined as to include those whose lives were mutilated in the day-to-day web of regulations in which the atrocities took place. If structural violence is to be addressed too, then social justice might be a way of dealing with the past as well. The relation between perpetrators and victims, which is the central focus of TJ, should therefore be extended to beneficiaries. Indeed, «if evil is thought of in social terms… does not the demand for justice turn mainly, if not wholly, into a demand for systemic reform?» (Mamdani, 1996: 5)

This structural aspect, however, has long been ignored in the TJ field. According to the South African TRC act, a victim is someone who «suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or substantial impairment of human rights (i) as a result of a gross violation of human rights; or (ii) as a result of an act associated with a political objective for which amnesty has been granted». A gross violation of human rights was defined in a very limited manner, as «(a) the killing, abduction, torture or severe ill-treatment of any person; or (b) any attempt, conspiracy, incitement, instigation, command or procurement to commit [killing, abduction, torture or severe ill-treatment]» (in De Greiff, 2006a: 8). But because of the nature of the apartheid system, which controlled fundamental aspects of peoples’ lives, the point has been made that this strictly political definition of «victim» was too narrow. As in communist or totalitarian regimes, everyone could be considered a victim, if only because the majority’s standard of living was affected. If this is the case, then no reparation program could ever «make up» for the past, and this general sense of victimhood would be better addressed through structural distributive programs. Such demands are rooted in the assumption that the past system in which the violations took place was one of structural violence and domination (colonialism, apartheid, slavery, segregation) and that this legacy is the cause of continuing economic disadvantages. Structural social reforms are the most forward looking measure of TJ, as they look for a way of transforming the current conditions of the victims themselves and their descendants. Through them, TJ becomes connected to a broader project of social justice, one that could take the form of redistributive policies, development, or affirmative action programs (Roht-Arriaza and Orlovsky, 2009).

Online Encyclopedia of Mass Violence® - ISSN 1961-9898