66 Pages Posted: 17 Jun 2014 Last revised: 18 Mar 2016
Date Written: February 4, 2015
“Just Repair” offers, for the first time, a comprehensive account of the author’s original theory of reparations for redressing atrocities. Responding to a gap in the literature concerning theoretical models for reparations, this novel theory aids governments in satisfying their international obligation to guarantee just repair for victims who suffered a violation of their fundamental rights. Based on a decade of empirical study of reparation programs, the author presents a user-friendly approach for governments facing daunting challenges when trying to repair the harm suffered by hundreds, and sometimes thousands, of victims of political violence, repression and armed conflict. Governments often opt for an administrative solution when it is not feasible for every victim to use civil suits to litigate their claims. These administrative regimes often draw upon the concept of reparative justice, adopting a “legalistic” approach that calculates damages and awards lump sums or annuities. These payments technically fulfill the international obligation to protect the recognized right to reparation enjoyed by all victims of human rights violations. Yet recent scholarship questions whether administrative programs respond adequately and appropriately to the needs of victims, especially when governments implement reparation programming without consulting victims and thus fail to meet the victims’ expectations and demands. This misaligned policy results in victim dissatisfaction with, and even rejection of, reparation programs. Yet, in exposing this problem, few scholars offer a theoretical framework for a broader analysis of why this policy failure occurs. This Article responds by suggesting that the rift between theory and practice arises in part due to the lack of a coherent theoretical framework to explain the justice aims of reparations that can not only guide the planning and implementation of reparation programs but also third-party evaluations of these projects. Additionally, there is a still minimal international law guidance of what constitutes an effective, adequate and appropriate reparation program. Thus this Article explains the theoretical underpinning of the author’s novel theory called the ‘justice continuum of repair’ which draws from classic legal and political theories to describe the overarching justice aims of reparations in transitional justice settings. This account better accommodates the multilayered justice aims held by victims, especially in light of the great diversity of human rights violations they suffer in addition to the variance in demographic characteristics like gender, class, age, location, among other factors. This theory builds on the work of Amartya Sen in arguing that the ‘postionality’ of victims will influence what they perceive to be necessary to feel repaired and a plural approach should be adopted when designing a reparation policy. To achieve this end, this Article proposes that a government should adopt a participatory approach while planning and implementing their reparation programs to better accommodate and manage the multiple justice aims and expectations of victims, and thus help to enhance the effectiveness and legitimacy of a national reparation policy. Moreover, this framework will contribute to the development of evolving international standards for assuring fair and just reparation programs. Ultimately, a pluralist theory offers a more coherent understanding of the justice aims of reparation programs while still promoting the universalistic concept of the right of reparations.
Keywords: Remedies, Reparations, Transitional Justice, Human Rights, Justice
JEL Classification: K33
Suggested Citation: Suggested Citation