On the indivisibility of rights: truth commissions, reparations, and the right to development.

AuthorLaplante, Lisa J.

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.

  1. 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...

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