Structural Causes of Conflict and the Superficiality of Transition

Chapter 7
Structural Causes of Conflict and the Superficiality of Transition

Pádraig McAuliffe

Introduction

Issues of socioeconomic justice played a marginal role in transitional justice in its first two decades as a policy concept and as a topic of mainstream academic study. Scholars and policy-makers in the field concentrated more on violations of civil and political rights than on structural violence, defined herein as the phenomenon whereby the structure of a society manifests unequal power relationships which lead to unequal life chances, harming people by preventing them from meeting their basic needs.¹ Inequalities and deprivation are closely related to the causes and dynamics of conflict, even if the precise causal relationship between inequality or socioeconomic rights deprivations and conflict are disputed. Even if inequality and poverty did not cause conflict, they may have constituted an aggravating factor or flowed from the conflict. Overall, as Aguilar and Gomez Isa argue, ‘[d]eeply embedded inequalities and discrimination very often pre-exist and exacerbate acts of direct violence against the poorest and most marginalized, and these inequalities translate into new forms of violence in the aftermath’.² Over time, a concern emerged that the overriding preoccupation with bodily integrity abuses in traditional transitional justice discourse would inevitably result in these inequalities being left in place, albeit in a more palatable, democratizing environment. Approaches that tackle historically constructed socioeconomic inequalities began to find favour in transitional justice in the last 10 years. It is argued that military action and political settlement alone cannot guarantee a successful transition, because as long as grievances and inequalities persist, new conflict entrepreneurs will be able to mobilize support. Scholars now routinely argue that mass poverty should be recognized as an object of justice³ and that the mechanisms of transitional justice should be applied to transforming oppressive economic arrangements that disenfranchise and exclude vulnerable and resentful segments of society.⁴ This distributive approach would conceptualize justice as equality to complement the traditional transitional justice preoccupation with liberty, and serve more forward looking-purposes than the ostensibly backward-looking emphasis of earlier approaches.⁵ This change in emphasis in transitional justice has occurred in a supportive environment. The field itself increasingly embraces holistic, integrated strategies that combine retributive, restorative and distributive justice. Transitional justice also embraces other disciplines such as peace-building and security which are conceptualized with greater frequency in terms of human security and collective well-being.6

The most forceful advocacy for a re-orientation of transitional justice from a limited concept of conflict prevention to socioeconomic metamorphosis is found in a widely cited speech in 2006 by the then-UN High Commissioner for Human Rights Louise Arbour, who argued that transitional justice ‘must’ have the ambition of assisting the transformation of oppressed societies into free ones by exposing discriminatory practices and violations of economic, social and cultural rights before and during conflict.⁷ This would yield a deeper and more substantive justice than the activities of development actors alone could generate.⁸ Different suggestions have emerged as to how transitional justice can satisfy these ambitions. Aguirre and Pietropaoli contend that it should assure outcomes based on the third generation right to development,⁹ while Mani argues for an explicitly distributive approach geared towards equity in resources and power.¹⁰ Miller argues that transitional justice should aspire towards what she calls ‘economic justice’, which would address the economic roots of conflict, temper economic liberalization with redistribution, and impact on the transitional government’s development plans.¹¹ African scholars have argued that transitional justice can and must ‘elaborate remedial actions that comprehensively address grievances in societies emerging from conflict’.¹² By contrast, Duthie argues transitional justice measures are not a development strategy but should be designed in ways that are ‘development sensitive’,¹³ but this is an unusually guarded vision of transitional justice’s potential effect on post-conflict or post-authoritarian society. The presumption is that virtuous circles would emerge, of justice, development and democracy mutually reinforcing each other.¹⁴

Most arguments about the relation of transitional justice to socioeconomic rights are startlingly ambitious, and presume it can thoroughly transform unjust arrangements in a manner that war, democracy, development and aid have not. To this can be added a ratcheting-up of the surrounding rhetoric. It is argued that reconciliation without economic justice ‘is cheap and spurious’¹⁵ and that ignoring inequalities will inevitably lead to a recurrence of conflict,¹⁶ notwithstanding the plethora of transitions in states like Mozambique, Angola, Guatemala and Sierra Leone which appear highly durable notwithstanding the absence of any real distributive justice. Others go even further, arguing that transitional justice’s emphasis on civil and political rights deprivations serves to protect the interests of the privileged at the expense of the poor,17 actively perpetuates the position of existing economic elites instead of empowering the marginalized,¹⁸ and serves as an enabling context for free markets.¹⁹ The field as a whole is deemed to risk losing credibility overall,²⁰ or being conceived of as nothing but a series of inconsequential events,²¹ unless it improves overall living conditions for citizens in the transitional state.

What explains this degree of ambition and certainty of belief? It may appear puzzling given that development actors by and large ignore transitional justice and discount its centrality.²² The answer may lie in the traditional optimism of scholars in the field regarding the potency of transition for reconceiving the premises on which a conflict-ridden society is based. Aguirre and Pietropaoli, for example, assert that transitions are rare periods of rupture ‘that offer opportunities to reconceive the social meaning of past conflicts in an attempt to reconstruct their present and future effects’.²³ Similarly, Muvingi argues the transitional phase creates space for redistribution and the construction of a more just order.²⁴ However, this ambitiousness coexists with a surprising tepidity when it comes to actually proposing concrete ways in which transitional justice actors can take advantage of this window of opportunity to achieve these aspirations. Notwithstanding the seemingly boundless confidence scholars have in transitional justice to aid development or redistribution, even the most optimistic works ultimately acknowledge that thus far all we have are a series of hypothetical connections to be further researched,²⁵ ‘points of possible interconnection’,²⁶ underdeveloped concepts and boundaries.²⁷ Suggested activities (‘exposing’ discriminatory practices,²⁸ ‘reaching’ for deeper justice,²⁹ ‘making connections’)³⁰ exist in the sphere of the inspirational, at some causal remove from constituting a solid policy basis. Because these incitements to action have yet to be implemented, there is no established theoretical or empirical base on which to build. This has served not to undermine confidence in the emancipatory potential of the field, but rather appears to have boosted it.

The Limited Conception of Justice as an Explanation for Marginalization

In explaining the underdevelopment of theory and lack of impact in practice, scholars have primarily focused on the narrowness of the concept of justice in transition. Arbour argues that the neglect of structural inequalities is symptomatic of a ‘deep ambivalence within justice systems about social justice’. She attributes this omission from transitional justice discourse to the mistaken presumptions that they are less egregious than civil and political rights abuses or that their programmatic nature makes them less conducive to judicial or quasi-judicial action.31 Others have argued that the traditional concern of transitional justice with the cessation of violence and handover of power has marginalized questions of socioeconomic development.³² Along similar lines, it is alleged that progress is stymied by the field’s building-blocks approach wherein justice mediates political transition after which larger problems can be addressed by the polity or the market.³³ As Arthur argues, when transitions were being conceptualized during the wave of democratic revolutions in South America and Europe in the 1970s and 1980s, they were envisaged as relatively short-term episodes of legal-institutional reconstruction, as opposed to longer-term, deeper socioeconomic transformation. This view of transition in turn coloured the conception of justice as retributive or restorative, as opposed to distributive.³⁴ As such, it is argued that transitional justice replicates the subservience of collective, future-oriented socioeconomic rights to individual, backward-looking civil and political rights in human rights discourse and practice.³⁵ Others take the argument one step further, arguing that because transitional justice is an integral part of the liberal peace-building model,³⁶ it must therefore promote neoliberal market-based economics antithetical to redistribution of wealth or economic equality.³⁷ Makau Mutua, for example, sees transitional justice reproducing the assumption of global human rights of the naturalness of the market and the inevitability of capitalist relationships.³⁸ Nagy contends that transitional justice is open to the accusation of attempting to ‘produce subjects and truths that align with market democracy and are blind to gender and social justice’.³⁹ In this view, there is nothing natural or inevitable about the distance between transitional justice and socioeconomic injustice. It is simply a convenient ‘constructed invisibility’ on the part of the international community keen to embrace electoral democracy and the rule of law to further globalization, but less enamoured of equitable distribution of the wealth it may generate.⁴⁰

Neoliberal capitalism often has an injurious effect on post-conflict societies by encouraging damaging competition and whittling away the resource base on which redevelopment and welfare could be based, among other reasons. However, it is necessary to examine critically the extent to which the limited impact of transitional justice on socioeconomic reform is explained by any acceptance of the rightness of the neoliberal free market paradigm on the part of practitioners and scholars. On the basis of a survey of writings on transitional justice since the late 1980s, it is hard to identify any theorist in the field explicitly arguing in favour of neoliberal capitalist economies. It is significant that none of the writers above cite any scholars in the field who do so. The very few scholars who explicitly oppose a role for transitional justice in directly addressing socioeconomic wrongs do so not on the basis of opposition to redistribution, but on the basis that the available mechanisms of transitional justice are unsuited to doing so or risk being over-taxed.41 By contrast, transitional justice generally rallies reformist forces and progressive elements who might be expected to support socioeconomic justice.⁴² Traditional transitional justice discourse has always concentrated on how transitional justice can facilitate progress towards a liberal political agenda of electoral politics, the rule of law, responsive governance and constitutionalism, but demonstrates ambivalence about a liberal economic order. Transitional justice aspires towards a stable society, but not necessarily a capitalist one. Transitional justice is certainly guilty of under-analysing its potential in stimulating socioeconomic reform, a matter which is slowly being redressed. However, under-analysis of the potential to catalyze socioeconomic reform should not be confused with opposition. To assume transitional justice is a willing stalking-horse for neoliberal economic reforms is to make an ultimately unconvincing ‘those who are not with us are against us’ argument from omission. Transitional justice is not synonymous with all elements of the liberal peace-building agenda and scepticism over its distributive potential owes less to concerns over legitimacy of the aims, but to their feasibility.

Even these feasibility concerns are muted. It is difficult to find transitional justice scholars who either accept the argument that adjudicating violations of socioeconomic rights is outright impossible or who reject the indivisibility of rights. Certainly, there is force in the argument that the neglect of economic justice might owe to the complex nature of structural violence which the resources, size or capacity of transitional justice mechanisms are unsuited to grappling with.⁴³ Undoubtedly, transitional justice can identify a violator (the physical perpetrator and the government/military figure who gave the order) and a remedy (criminal punishment, guarantee of non-repetition by the democratizing state) for bodily integrity abuses like torture or crimes against humanity with greater ease than it can diagnose the reasons for, and ways to rectify, the unequal macro-level economic organization of society.⁴⁴ However, examples like the bills of rights in South Africa, Nepal and India demonstrate that socioeconomic rights can be enforceable by law, while truth commissions in the likes of Sierra Leone, Liberia and South Africa have outlined structural causes of conflict and made broad suggestion about possible reforms. On similarly practical lines, some suggest that the dearth of resources available to transitional justice limit its distributive impact,⁴⁵ while others argue the short life-spans of transitional justice mechanisms undermine their potential.⁴⁶ These explanations based on practicalities are reasonable but ultimately inconclusive. If transitional justice could realize even a fragment of the promise advocates hold out for it in redressing socioeconomic wrongs, any funding shortfalls could surely be overcome by international aid, while the case for extending, or even making permanent, mechanisms so evidently ameliorative would be incontestable.

Laying the Blame – Transition or Justice?

Ideology therefore cannot explain the apparent under-performance of transitional justice in relation to addressing the structural causes of conflict. Both optimists and pessimists accept that unjust economic structures kill more than bullets and bombs47 and that internal conflict operates as a form of ‘development in reverse’.⁴⁸ Surveys of survivor populations overwhelmingly demonstrate that socioeconomic concerns trump the desire for criminal justice or truth in transitions.⁴⁹ If the conception of justice, therefore, does not explain the lack of impact of transitional justice on socioeconomic rights, development, or inequality, it is worthwhile switching attention to the other composite element of the concept, namely the transitional. As noted earlier, advocates of distributive transitional justice rely on the presumption that the sheer fact of transition is conducive to achieving their ambitious aims. This exemplifies what Colvin describes as transitional justice’s technocratic and utopian imperative, relying heavily on a logic of project management in which the right combination of technique and planning will accomplish the goals set for any given mechanism.⁵⁰ This ‘toolbox’ approach tends to assume the universality of the norms underlying transitional justice as applicable in all contexts, an optimism that inevitably disregards local political, social, cultural and historical contexts and seemingly operates immune to local power struggles and political instrumentalization.⁵¹ Consequently, ‘vague statements’ and ‘received wisdom’ ‘are produced about what transitional justice is and how the aims of it can be achieved’.⁵² In this manner, broad generalized statements about how transitional justice as a concept can achieve socioeconomic justice (or heal the traumatized, or end centuries-old cycles of violence) achieve widespread acceptability within the field without any attention to the inevitably idiosyncratic and difficult conditions it will be applied in.

The idea that law can displace politics and resolve conflict is tempting and one that has animated transitional justice from the beginning.⁵³ However, it relies on the presumption that a change from war or authoritarianism to peace and democracy automatically imports sufficient emancipatory momentum to achieving these ambitious aims, which is rarely the case. As the next section will illustrate, the political economy of even relatively straightforward transitions to democracy seldom conduces to distributive justice or socioeconomic reform – incoming democratic regimes may not organize their political programmes on this basis, the outgoing regime may only do so to the extent civil-political power is traded for the retention of economic power, power-sharing among elites may be preferred to distributive justice for the communities they purport to represent, or peace may rest on a structurally unequal status quo. Forms of state reconstruction are negotiated before, during, and after the transition, and rarely manifest the linear narrative presumed in transitional justice discourse. Optimistic accounts of transitional justice’s distributive potential exaggerate the ability of transitional justice to ‘set the tone’ for future governance54 – political transition is continuously negotiated by dynamic, non-teleological relations of control and consent, power and authority among multiple power poles, some of whom will be the inevitable (and extremely reluctant) losers in any distributive process and therefore resist it.⁵⁵ Transitional justice therefore is a game of relatives not absolutes: achievable goals should be determined not merely by the mechanisms available but also the opposition to be faced in a mediated state.

The Political Economy of Transition

Belief that transitional justice can significantly impact the macro-economic structures of all transitional states everywhere can only emerge if the proposed mechanisms are applied from standard blueprints and if insufficient reflection is given to contextual relevance and appropriateness, as transitional justice is regrettably wont to do.⁵⁶