Transformative Reparations for Victims under International Law: Changing the Game or More of the Same?

                                                                                         Julie Fraser & Brianne McGonigle Leyh

victims-rightsReparations are an old concept in both domestic and international law. Victims have long been repaired in some way for the harms they suffered themselves, to their families or property. Following World War II, victims received some type of reparation, usually paid by the State, for their profound losses, and just last year the Dutch Railways NS announced that it would pay reparations to victims for its role in transportation for the Nazi regime. In the USA there have been enduring discussions about the yet unpaid reparations for slavery. Along with these developments, there have been changes to the approaches taken to reparations. Firstly, reparations have been recognised as part of a victim’s right under international law. Secondly, critiques have arisen regarding the traditional approach of reparations that seeks to restore victims to the position they were in before the harm occurred. Academics and practitioners have criticised this approach as failing to address socio-economic disparities and unequal power structures, which may have led to the victimisation in the first place. The recent transformative justice movement, and transformative reparations in particular, grew out of the belief that it is ineffectual to place marginalised victims back into positions of marginalisation following serious harm. This blog, based on a recently published article, critically examines transformative reparations within the human rights and criminal context, and explores whether the concept of transformation is changing the game.

In many ways, a feminist critique lies behind the transformative movement in international law. In addition to its focus on addressing sexist structural biases in both domestic and international law, the feminist critique addresses matters of redistribution, recognition, and inclusion.The literature stresses the importance of broad and meaningful participation with women and girls, with the aim of bringing about change of a fundamental nature. Likewise, the right to participate in a reparations process is an opportunity for all victims to exercise their agency. It is about establishing a dialogue where victims share their views, needs, and concerns, and have a say on how reparations are shaped. Such participation reflects a more bottom up than top down process. In this way, ‘transformation’ may be useful as a language of demand and as an advocacy tool for victims to call for more participation and for more to be done to remedy structural situations of victimisation and marginalisation/poverty. As such, the concept of transformation is a welcome disruptor to the traditional approaches to reparation that only seek to put victims back into their original position without taking into account their needs and concerns.

The desire to transform the lives of victims as well as the power structures that sustain unequal relationships and promote victimisation is compelling. It also aligns neatly with pre-existing human rights held by victims – as well as everyone else in society. For example, both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights prohibit discrimination based on grounds including race, colour, sex, language, religion, political or other opinion. The latter Covenant also obliges States to ensure the progressive realisation of socio-economic rights for all those in their jurisdiction. Moreover, international treaties directly addressing sex and race discrimination specifically require States to take a number of far-reaching measures to overhaul existing discrimination at all levels of society. Promoting transformative reparations can therefore be seen to synthesise or reflect a number of existing human rights obligations on States Parties and provide a holistic approach for victims to enjoy their rights.

The concept of transformative reparations has been taken up, to varying and limited degrees, in numerous legal settings, beginning especially in Latin America. Of particular relevance here are cases by the Inter-American Court of Human Rights including Plan de Sanchez and Cotton Fields. Domestically, too, States have taken up the idea. The most well-known example is Colombia’s 2011 Victims Law, which establishes a comprehensive programme for victims’ rights in response to the more than 50 years of conflict between the State and non-state armed groups. Similarly, the Peruvian Truth and Reconciliation Commission adopted a transformative mandate. While much of the emphasis on transformation originated and developed within the Latin American context, it has also been picked up in other regional systems like the EU and internationally. The UN Committee on the Elimination of Discrimination against Women has called for transitional justice mechanisms to ‘secure a transformative change in women’s lives.’ The UN Secretary General promulgated a Guidance Note in 2014 on reparations for conflict-related sexual violence, underlining that the design, implementation, and impact of reparations should aim to be transformative. The idea of transformative reparations has also been endorsed by the International Criminal Court (ICC) in cases like that against Mr Katanga.

These developments all point towards a new ‘transformative’ paradigm emerging within transitional justice more generally and reparations specifically. Despite such endorsements, it remains unclear what ‘transformation’ means in theory and in practice. There are still many question marks around the subject and scholars are continuing to construct a definition of transformative reparations as well as determine its relationship to the broader transitional justice field. We have identified several problems with transformative reparations, including issues with terminology, efficacy in practice, as well as limitations of mandate.

The first issue is the confusion regarding what ‘transformation’ actually means. For example, is it about individual or societal transformation – or both? Can an individual even be transformed if their society is not? Who gets to determine when someone’s life or society has been transformed? The lack of clarity around the term and its meaning can contribute to raising the expectations of victims, who may anticipate substantive and far-reaching reparations. It is therefore important to be realistic as to what a victim may be able to expect from reparations, or there is a risk of harming victims further by raising false expectations.There is also a risk of damage to the institutions delivering reparations, particularly when they are already overburdened and under-resourced. As Williams and Palmer have noted, they may become bodies with aspirational goals of delivering transformative reparations that they will never be able to fulfil.

This expectation inflation is a problem with reparations processes generally, but particularly troubling when there are expectations of transformation.This is because reparations programmes have a poor history of successful implementation. While some reparation programmes have enjoyed success (notably the early programmes in Chile and Argentina) reparations programmes typically fall far short of expectations or recommendations. A frequently cited example is the South African reparations programme following the end of Apartheid. The fact remains that most victims around the world of gross human rights violations as well as serious violations of international humanitarian law do not receive reparation. The UN Special Rapporteur focusing on reparations has noted that ‘[t]his implementation gap is of scandalous proportions.’ Walker notes the ‘deep irony’ in pursuing an agenda of transformative reparations ‘when most victims go begging for the most elementary forms of direct relief.’

Our third critique of transformative reparations relates to the mandates of the institutions responsible for reparation. For example, it can be seen as beyond their mandate for mechanisms that do not address State responsibility to aim nonetheless to facilitate institutional and societal changes. Nowhere is this more evident than within the field of international criminal law and with institutions like the ICC. The argument that transformative reparations fall outside such a mandate is based on two ideas. Firstly, criminal law institutions like the ICC do not have the mandate or scope to undertake broad-based societal transformations as reparations flow from a single convicted person and not a State. Secondly, transformative reparations may in fact be contrary to the mandate of such institutions, which are directed to repair individual victims and not societies more broadly.As such, expecting the ICC’s reparations to transform socio-economic structures of inequality can be seen as well beyond its limited mandate of repairing specific victims. This is where international criminal courts differ from international human rights bodies, which do determine State responsibility and can make reparations orders/recommendations including State measures of satisfaction and guarantees of non-repetition. This reveals transformative reparations as more suited to the work of international human rights bodies and States, rather than international criminal courts and awards against convicted individuals.

Therefore, we argue in our article that transformative reparations have potential but only when: (i) requested by victims and victim communities; (ii) designed together in an inclusive process with victims and victim communities; and (iii) where the State or implementing authority has a mandate and is in a position to actually deliver upon the promise of transformation. It also requires an understanding of what the key actors, and most importantly the victims themselves, see as the aim of transformation. We argue that outside the international(ised) criminal context, and especially in the national and local context, there may be greater scope for reparations with transformative potential but only when victims and affected communities play a central role in the decision-making and when linked with other non-temporary, structural changes. Even under these circumstances, reparation authorities should be cautious of raising false expectations because, in reality, very few victims will receive reparations and even fewer will see their lives or communities transformed.

For more detail and analysis, see our article published last month by the Cambridge International Law Journal here.