The Protection of Economic, Social and Cultural Rights Post-Conflict

Introduction

Our starting point is that effective delivery of economic, social and cultural rights is an important – and underexplored – element of transitional justice and post-conflict reconstruction. The High Commissioner for Human Rights has argued strongly that the inclusion of abuses of economic and social rights within post-conflict criminal prosecutions and truth and reconciliation processes is an important element of achieving social justice but one that has been largely neglected. It is our contention that failure to deliver economic, social and cultural rights through national legal frameworks in accordance with international standards undermines the sought-after stability and human security post-conflict (including food, health, gender and physical security), which in turn lessens the ability or willingness of victims and witnesses to participate in the formal processes of post-conflict justice.

International law requires States to adopt ‘appropriate and effective legislative and administrative procedures' for ‘fair, effective and prompt access to justice.' This includes ensuring that victims of crimes perpetrated during conflict secure ‘equal and effective access to justice.' This depends upon the willingness of victims to testify, which requires that they receive protection to ensure their physical and material security. If they are unable to access employment, health services or to acquire adequate food for themselves and their families they may well regard participation in criminal proceedings – even for the trial of war crimes or crimes against humanity committed against themselves – as a luxury that they cannot afford. Violations of economic and social rights post-conflict exacerbate earlier violations creating a double injustice for victims. This reduces the possibility of successful prosecution of those who committed atrocities during the conflict and weakens the prospects for an enduring end to violence. We therefore submit that ‘proper assistance' for victims who are seeking access to justice includes guarantee of economic and social rights. This has particular resonance for women who are frequently victims of gender-based specific harms in conflict and for whom guarantee of economic and social rights is especially important. We argue that this approach is in accordance with Security Council (SC) Resolution 1325 on women, peace and security (October 2000). This resolution emphasises the importance of ‘involving women in all peacekeeping and peace-building measures' and the ‘responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, war crimes including those relating to sexual violence against women and girls' It also calls upon States to ‘adopt a gender perspective', including with reference to ‘the special needs of women and girls during repatriation and resettlement and for rehabilitation, reintegration and postconflict reconstruction.' Most recently Security Council Resolution 1820 (19 June 2008) called upon States to ensure that women and girls have ‘equal protection under the law and equal access to justice'. It is our contention that the ‘special needs' of Security Council Resolution 1325 and the requirements of ‘equal access to justice' in Security Council Resolution 1820 necessarily encompass access to economic and social rights to make legal protection effective, as well as the basics of survival and personal rehabilitation.
Delivery of economic, social and cultural rights contributes both to an equitable allocation of public goods and services and to law enforcement by facilitating accountability for the commission of international crimes as required by the tenets of transitional justice. This is in fact no more than restating the principle of the interdependence of all human rights. 11 We argue that lack of access to economic and social rights not only impedes effective transitional justice but also creates an obstacle to participation in the institutional and social structures for reconstruction. It thus undermines the realisation of participatory democracy and the achievement of full citizenship for women. Accountability is also an over-riding interest of the international community.

Focus on economic and social rights is not to deny the importance of cultural rights. Although the focus will be on those rights contained within the International Covenant on Economic, Social and Cultural Rights (ICESCR), articles 6-14, it is with recognition that their effective application and implementation requires that they be culturally mediated.

This paper seeks to demonstrate that economic and social rights can and should be made a core element of post-conflict settlement in pursuance of a sustainable peace based upon the rule of law. As noted by the UN Committee on Economic, Social and Cultural rights (CESCR), it would also facilitate the return home of those who had left a State during conflict, 12 or had become internally displaced. The second section of the paper identifies obstacles to the inclusion of economic and social rights in peace settlements and in post-conflict reconstruction. The inclusion of economic and social rights is especially important with respect to the security of vulnerable persons who can become marginalised by post-conflict settlements. Their frustrations may destabilise what may already be a tenuous situation. The third section therefore identifies those who might face particular vulnerabilities post-conflict and the following section lists the existing international legal obligations for the guarantee of their economic and social rights. This section emphasises that the obligation to ensure economic and social rights already exists under international law and that vulnerable peoples have special entitlements based upon their needs. The paper is not arguing for new obligations but rather for the application of existing obligations in the moment of reconstruction. In this sense explicit provision for economic and social rights within peace agreements is not required but such provision facilitates their being taken into account during policy and planning post-conflict and may minimise the likelihood of their being relegated to a subsequent phase of development. The fifth section examines existing jurisprudence to demonstrate the justiciability of economic and social rights.

This introduction has emphasised the importance of ensuring economic and social rights as part of a programme for post-conflict reconstruction but it is not intended to limit their importance to such situations. Indeed the jurisprudence on economic and social rights has typically not arisen in postconflict contexts but out of situations of vulnerability such as homelessness, exploitation and ill health. This paper seeks to apply the legal standards and jurisprudence on economic and social rights to post-conflict reconstruction because that is the context in which the concept of transitional justice has been moulded. The moment of constitutional reform and social reordering that postconflict reconstruction provides makes it useful for analytical purposes from which we can explore the usefulness of a similar approach in other situations where legal accountability is sought for wrongs committed against vulnerable people, including for international legal wrongs such as human trafficking, and where the evidence of victims and witnesses may impact upon the prosecution.