Abstract
As new conflicts emerge, transitional justice practitioners are finding it increasingly imperative to incorporate the concepts of asset recovery into transitional justice processes and mechanisms. However, for its success, the pillar of transitional justice relating to international asset recovery needs strengthening. Yet a granular understanding of this dimension remains a critical blind spot in the transitional justice and human rights conversation. This paper brings the dynamics of asset recovery as an emerging aspect of human rights law to the fore. In terms of methodology this paper relies on Sharp’s critically motivated problem-solving theory. The paper suggests that for transitional justice to be holistic it should include asset recovery in its accountability mechanisms. Hopefully, it humbly contributes a new angle toward the understanding of what transitional justice can and could become.
Highlights
There is a negative impact of the non-repatriation of funds illicitly acquired to the countries of origin on the enjoyment of human rights, in particular economic, social and cultural rights.1 A research by the World Bank and the United Nations Office of Drugs and Crime (UNODC) revealed that the trillions that are embezzled every year only a fraction of this money finds its way back to the jurisdictions it was stolen with the rest remaining overseas for decades.2 Against this background, economic crimes such as corruption and outright theft of public assets, and laundering of money stolen from the public are usually a hallmark of authoritarian regimes
Rhada Ivory defined asset recovery in United Nations Convention Against Corruption (UNCAC) “as the legal process by which states use each other’s coercive powers to obtain or regain ownership of proceeds and objects of corruption or substitute assets.”14 While a good starting point, this conceptualization of asset recovery is insufficiently specific for the purposes of state-to-state cooperation, it does not acknowledge the rights of the public in general, and victims in particular
Based on what we know the Arab Spring “situation represents a unique set of circumstances requiring a different approach to transitional justice.”36 For instance, unlike other regions where change is usually based on the violation of physical violence, most scholars agree that the revolts in the Middle East and North Africa (MENA) countries were instigated by the need for economic space—in particular the elimination of corruption
Summary
There is a negative impact of the non-repatriation of funds illicitly acquired to the countries of origin on the enjoyment of human rights, in particular economic, social and cultural rights. A research by the World Bank and the United Nations Office of Drugs and Crime (UNODC) revealed that the trillions that are embezzled every year only a fraction of this money finds its way back to the jurisdictions it was stolen with the rest remaining overseas for decades. Against this background, economic crimes such as corruption and outright theft of public assets, and laundering of money stolen from the public are usually a hallmark of authoritarian regimes. For countries emerging from repression and mass atrocity, transitional justice can be a solution to adapt legal mechanisms to redress massive human rights violations as a result of theft and plunder of public resources. Borders and Boundaries embraces “as well as” rather than “either/or explanations” by emphasizing the way transitional justice critique pushes thinking beyond the status quo, but with a greater eye to questions of feasibility and implementation .9 What this means in terms of my research is that rather than following suggestions for an alternative approach to transitional justice in the form of “transformative justice” as a way to redress economic justice and redistribution of wealth, I will argue, instead, that transitional justice can use its present accountability mechanisms “as well as” importing asset recovery into its mix to address these issues.. The topics covered in each of the four sections deserve much deeper analysis than it is possible to provide in the constraints of this paper
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