Transitional Justice, Corporate Accountability and Socio-Economic Rights

Lessons from Argentina

Laura García Martín

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000497250
• Edition: 1
• Topic: Business
• Subtopic: Business Ethics
• Index: Business

This book explores the intersection of two emergent and vibrant fields of study in international human rights law: transitional justice and corporate accountability for human rights abuses.

While both have received significant academic and political attention, the potential links between them remain largely unexplored. This book addresses the normative question of how international human rights law should deal with corporate accountability and violations of economic, social and cultural rights in transitional justice processes. Drawing on the Argentinian transitional justice process, the book outlines the theoretical and practical challenges of including corporate accountability in transitional justice processes through existing mechanisms. Offering specific insights about how to deal with those challenges, it argues that consideration of the role of all actors, and the whole spectrum of human rights violated, is crucial to properly address the root causes of violence and conflict as well as to contribute to a sustainable and positive peace.

This interdisciplinary book will be of interest to students and scholars of transitional justice, human rights law, corporate law and international law.

Part I
Transitional justice and socio-economic rights

1
Analysing the transitional justice paradigm

Introduction

The focus of transitional justice has progressively expanded from human rights accountability in democratic transitions to a broader conception of transition, involving a variety of legal regimes, mechanisms and justice theories. Consequently, different conceptions of what transitional justice is, and what it should be, have been conceived. The employment of diverse transitional justice mechanisms reflects internal and international political, historical and socio-cultural dynamics unique to each particular context. However, addressing human rights violations, effectively redressing victims and preventing recurrence are constant features in every transitional justice process developed to date.

This first chapter explores the notion and evolution of transitional justice as a field, focusing on its defining features and its main processes and mechanisms. While acknowledging that political variables and actors certainly influence the design and implementation of transitional justice strategies, this chapter shows that there are many elements in common within the existing mechanisms and proposed solutions. Therefore, seeking for the common grounds of previous transitional justice strategies could serve to draw up general applicable solutions that can be adapted to the specific contexts in which they need to operate.

Background and evolution of transitional justice

Most of literature locates the beginning of transitional justice in the post–Second World War Nuremberg and Tokyo military tribunals.¹ In 1945, the Allies ran the Nuremberg trials, benefiting from the special international political conditions of the post-war period, which would not last long in the same manner afterwards. This first stage of transitional justice consequently ended soon after the war and was followed by an impasse on the issue during the period of the bipolar world of the Cold War. Although short in time, it was characterised by international war crimes trials and interstate cooperation,² and contributed to developing modern human rights law.³ Criminal accountability being the primary goal of transitional justice by that time meant the extension of international criminal law beyond the State to the individual, which constituted an important innovation in international law. Indeed, post-war transitional justice’s legacy has been irrefutable in the field of international law, where the accountability precedents for wartime abuses were enshrined in international conventions shortly after the war.⁴

1 See for instance, R. G. Teitel, ‘Transitional Justice Genealogy’, 16 Harvard Human Rights Journal 69–94 (2003); and J. Elster, Closing the Books: Transitional Justice in Historical Perspective, Cambridge University Press, Cambridge, 2004. See also G. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton University Press, Princeton, 2000.

2 National justice was in this sense displaced by international justice. For an account, see G. Battle, ‘The Trials before the Leipsic Supreme Court of Germans Accused of War Crimes’, 8 Virginia Law Review 1–26 (1921).

3 H. Steiner and P. Alston, International Human Rights in Context: Law, Politics and Morals, Oxford University Press, Oxford, 2000. On the impact of the Nuremberg trials, see R. G. Teitel, ‘Nuremberg and Its Legacy, Fifty Years Later’, in B. Cooper (ed.), War Crimes: The Legacy of Nuremberg, TV Books, New York, 1999 (44–54).

4 Such as the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277 (entered into force 12 January 1951). For a discussion of the codification process of the International Law Commission, see M. C. Bassiouni, ‘The History of the Draft Code of Crimes Against the Peace and Security of Mankind’, 27 Israel Law Review 247–267 (1993). For broader discussion on human rights post-war developments, see R. G. Teitel, ‘Human Rights Genealogy’, 66 Fordham Law Review 301–317 (1997).

Years later, over the last quarter of the twentieth century, the disintegration of the Soviet Union and the end of military rule in Southern Cone countries were followed by other transitions in Eastern Europe, Africa and Central America.⁵ Apart from evidencing how the United States and Soviet Union influenced local and regional conflicts within a bipolar world context,⁶ this second stage of transitional justice was characterised by a period of accelerated democratisation and political fragmentation which has been called the ‘third wave’ of democratic transition.⁷ The emerging model of transitional justice was now based on nation-building, which however remained at cross purposes with broader conceptions of international justice.⁸ Therefore, the original model of transitional justice was replaced at this stage with domestic trials and special emphasis on the rule of law, attempting thus to legitimate the successor’s regime. Despite the lack of international trials, international legal norms contributed to providing consistency to the rule of law as it was universally standardised by the Nuremberg model.⁹ In contrast with the first phase, legitimation of punishing human rights abuses was not simply assumed then, but conversely, tensions between punishment, amnesties and their contribution to build the rule of law were raised. In fact, discussions on the notion of justice in transition emerged. Debates at this stage covered not only the question of accountability for past human rights abuses but also how to heal and reconcile the entire society; therefore transitional justice was associated with the more complex political conditions of nation-building.¹⁰ These dilemmas were seriously taken into account in many countries when deciding their transitional strategy and considering putting into place alternative methods to face past violations.¹¹ Different conceptions of justice consequently emerged, moving beyond simply retributive justice as it was originally understood. In the same vein, given that revealing the truth of past events was one of the main purposes of transitional justice in this second period, new institutional mechanisms were developed to this end. The most significant one is the truth and reconciliation commission (TRC), an official body whose primary task is to investigate and record past human rights abuses and root causes of conflict. Transitional justice then was conceived also as form of dialogue between victims and perpetrators, often using the TRC as a vehicle to reconcile and recover from a violent past. Similarly, this sort of mechanism combined the establishment of a historical record while at the same time leaving open the possibility of future judicial actions. Exceptional and limiting national political conditions were therefore thoughtfully considered in most of this second phase’s transitions.

5 See E. Popovski and M. Serrano, After Oppression: Transitional Justice in Latin America and Eastern Europe, United Nations University Press, New York, 2012. On the discussion of the balance of power in Latin America, see L. Schoultz, National Security and United States Policy towards Latin America, Princeton University Press, Princeton, 1987; see also C. Brown (ed.), With Friends Like These: The Americas Watch Report on Human Rights and U.S. Policy in Latin America, Pantheon Books, New York, 1985.

6 It should be noted that the end of these political circumstances did not imply that such conflict has also ended, as there remain numerous interconnected insurgency movements, particularly in Latin American countries. See L. Schoultz, n. 5, pp. 112–204.

7 See for instance, S. Huntington, ‘The Third Wave: Democratization in the Late Twentieth Century’, 2 Journal of Democracy 12–34 (1991).

8 There are however exceptions in the turn to international justice regarding the conflicts in the Balkans and in Rwanda.

9 R. G. Teitel, n. 1, p. 76.

10 Ibid.

11 Such as truth-seeking mechanisms. South Africa and Rwanda’s transitional processes are good examples of that. See for instance P. Van Zyl, ‘Dilemmas of Transitional Justice: The Case of South Africa’s Truth and Reconciliation Commission’, 52 Journal of International Affairs 647–667 (1999); and L. Waldorf, ‘Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice’, 79 Temple Law Review 1–87 (2006).

The expansion and normalisation of transitional justice is conceived as part of the third phase.¹² International justice developed in the post-war period recurs at this point but was transformed by new political contexts. Transitional justice has now extended beyond its historic role in regulating international conflict to regulate intrastate conflict as well as peacetime relations: weak and fragile States, domestic conflicts and political fragmentation are some of the common factors of this third and contemporary phase. Indeed, the key element of normalisation of transitional jurisprudence is the institutionalisation of the International Criminal Court (ICC).¹³ Preceded by the two ad hoc international criminal tribunals of the former Yugoslavia and Rwanda, the ICC reflects the consolidation of the first phase model: a permanent international court to investigate and prosecute the most egregious human rights violations.¹⁴ Nowadays, the transitional justice conception of the global rule of law seems to be based on an expansion of the law of war, as evidenced by the rise of humanitarian law.¹⁵ In fact, transitional justice is increasingly understood as ordinary justice carried out in exceptional circumstances.¹⁶ Globalisation has significantly contributed to this phenomenon, and accordingly, new human rights dilemmas are raised regarding the tension of main goals of transitional justice. Indeed, pursuing justice in such new political contexts irrefutably implies diverse conceptions of rule of law standards and principles. While this diversity could serve the varying aims of transitional justice processes, polit...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Contents
• Book abstract
• List of abbreviations
• Acknowledgements
• Introduction
• PART I Transitional justice and socio-economic rights
• PART II Corporate accountability in transitional justice
• PART III The case study: Argentina
• Conclusions
• Bibliography
• Annex – List of interviews
• Index