Reparatory Justice

CHAPTER FOUR
Reparatory Justice

In contemporary times, most transitional regimes—whether following war, military dictatorships, or communism—have undertaken some form of reparatory justice. The review of reparatory practices pursued here suggests this response is widely prevalent, despite divergent legal cultures. How do societies think about such efforts at reparation? What is their purpose and function? What is the meaning of transitional justice for victims of past regime wrongs and for the society?

The threshold dilemma confronted by successor regimes in transitional periods is whether new regimes are obligated to redress victims of state wrongs. Under international law, wherever states have violated duties, there is a clear legal obligation to repair.¹ Nevertheless, in national debates over what to do about past evil legacies, the question of reparatory justice is a more complicated problem generally inherited by the successor regime, raising conflicts between the backward-looking purposes of compensating victims of past state abuses and the state’s forward-looking political interests. Reparatory practices raise the prospective/retrospective, individual/collective dilemmas characterizing transitional periods. Yet whether in ordinary or transitional periods, reparatory justice is always in some sense backward-looking, as it implies rectification of past wrong. Transitional reparatory justice, as is elaborated further on in this chapter, reconciles the apparent dilemma in the extraordinary context of balancing corrective aims with the forward-looking goals of the transformation. Similarly, transitional reparatory justice mediates individual and collective liability, shaping the political identity of the liberalizing state.

The vocabulary of “reparatory justice” illustrates its multiple dimensions, comprehending numerous diverse forms: reparations, damages, remedies, redress, restitution, compensation, rehabilitation, tribute. Precedents going back to ancient times illuminate transitional reparatory justice’s complex role. Transitional reparatory measures mediate repair of victims and communities, past and present, laying a basis for redistributive policies associated with radical upheaval.

In the biblical account of reparatory justice, on the fateful night of the Exodus, the Israelites “borrowed from the Egyptians objects of silver and gold, and clothing.”2 God told the Israelites to take valuables from the Egyptians: “The Israelites had done Moses’ bidding and borrowed from the Egyptians objects of silver and gold, and clothing. And the Lord had disposed the Egyptians favorably toward the people, and they let them have their request, thus they stripped the Egyptians.”³ The text suggests the valuables were not taken by force but willingly given up by the Egyptians. However, the biblical story is open to divergent interpretations, for the same account that refers to “borrowing” and “request” also says the Israelites “stripped the Egyptians.”

Another aspect of the night’s events is reiterated in a biblical section that elaborates on the “stripping” of the Egyptians: “Each woman shall borrow from her neighbor and the lodger in her house objects of silver and gold, and clothing, and you shall put these on your sons and daughters, thus stripping the Egyptians.”⁴ This account suggests there was an exchange of dress between the Egyptians and the Israelites. Stripping the Egyptians implies that the freed slaves had assumed the dress of their slave owners, in turn, leaving the owners virtually naked—as slaves. The sequence harks back to the very origins of the term redress. “Redress,” according to the word’s origins, relates to the attire worn in public ceremonies, signifying distinct status. In its earliest usage, in the Middle Ages, “redress” links attire, status, and the restoration of dignity. The stripping of the Egyptians and the “re-dressing” of the Israelites signifies more than a material settlement, it is a setting straight, a ceremonial redressing, a rehabilitation in the public eye. This ancient symbolic aspect of reparatory measures is manifest in subsequent precedents throughout history.

What is the meaning of the Exodus epoch’s reparations? The biblical account supports alternative understandings. The taking of the valuables could be understood as a gift; a loan; an inducement to leave, for example, a bribe; a mutual property exchange, for example, Egyptian movables traded for the Israelites’ real property left behind; compensation for back wages and other abuses relating to years of slavery in Egypt; or, as symbolic redress, a rehabilitation of political status. In one interpretation, the story is about the ancient Hebrews’ taking advantage of the chaos of the transitional moment and pillaging stolen goods. In another interpretation, this is not the action of runaway slaves but the implementation of a divine plan. The Egyptians gave the valuables as reparations, as part of a divinely ordained justice.5 This interpretation builds on earlier biblical allusions to the fleeing nation’s becoming one of “great substance,” foreshadowing the claim to the Egyptian treasure.

How to make sense of the account? Was the stripping of the Egyptians backward-looking, the valuables taken to settle for past enslavement and persecution? Or was the “re-dressing” of the Israelites forward-looking, the valuables taken to amass capital necessary to nation-building? The language of the biblical text and subsequent commentary support both views. If the biblical account of the night of the Exodus is interpreted in its historical and political context, that interpretative context is the particular hermeneutics of transition, including the years of enslavement before the eventful night and also the subsequent history in the biblical account of the transition out of slavery to nationhood. The transitional context has both backward-looking and forward-looking aspects that color interpretation of the reparatory practices. As we shall see, the biblical story has enduring resonance, for it illustrates the paradigmatically multiple quality of reparatory justice.

Postwar Reparations and Total War Guilt

At the end of World War I, the reparations exacted of Germany squarely raised the question of the meaning of reparatory justice. At Versailles, responsibility for the war was conceived in totalizing terms: The peace settlement made Germany responsible for “total war guilt” and concluded with Germany’s agreement to pay huge reparations.⁶ In the peace settlement, the reparations levied on Germany were punitive but justified on the basis of deterrence—that is, to cripple Germany so that it could never again wage war. The Treaty of Versailles attributed the crime of “aggressive war” to the state of Germany. Its understanding of responsibility was in collective terms, and the sanctions’ impact, too, would fall on the state. After four years of war, the Allies might have demanded the entire cost of the war as a matter of right, but, ultimately, the claim to reparations was framed, not in terms of the Allies’ “right,” but, rather, in terms of Germany’s “duty.” The so-called war-guilt clause of the Versailles treaty emphasized Germany’s total liability, forcing Germany to accept responsibility for “causing all the loss and damage to the Allies … as consequence of a war imposed on them by … aggression.” The Versailles treaty at Article 231 provides: “The Allied and Associated Governments affirm, and Germany accepts, the responsibility of Germany and her Allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of a war imposed upon them by the aggression of Germany and her Allies.”7 According to the treaty’s war-guilt clause, all responsibility for the war—its total costs—was to be shouldered by Germany.

Versailles’ heavy reparatory burden raised a number of questions. There was the practical problem raised by onerous sanctions so heavy that, as recognized at the time, there was little likelihood that Germany could make its payments.⁸ There was also the crudeness of economic sanctions. Their undifferentiated nature meant their impact fell on the state as a whole. The reparations’ magnitude raised a host of questions about their nature and function: To what extent were such remedies intended to fulfill a compensatory function, for war-related offenses? To what extent punitive? The formulation of the reparations provisions in the Versailles treaty was ambiguous, reflecting multiple purposes. The postwar treaty intriguingly separated the question of responsibility from that of ultimate liability. Total war guilt pressed at the interstices of criminal and civil liability; while the reparations at stake appeared to be civil in nature, the Versailles treaty’s “total war-guilt” clause explicitly distinguished responsibility from its enforcement, from execution of judgment. Despite the treaty’s statement of total liability at Article 231, Article 232 conceded the problem of the scarcity of resources. Though there was substantial Allied debate over the question of the extent of liability and at what level to set the reparations, the language of the treaty suggested there was an understanding that—beyond payment for material losses—Germany would be held morally, politically, and legally responsible for the war. Nevertheless, the same treaty recognized that Germany would not pay. The treaty’s peculiarly phrased two clauses signaled the profound ambiguity raised by reparatory practices in periods of transition.

Postwar reparations, like those in ancient times, reflect a hybrid, complex view of the nature and role of these practices, which simultaneously advances the repair of present damage and the sanctioning of past wrongs, assertedly intended as corrective of the past, while advancing the broader futurerelated political goals of the transition.

Wiedergutmachung and Shilumim

Out of World War II’s unconditional surrender and the ashes of the camps arose a reparatory project that still remains the most sweeping in history, totaling in the tens of billions of dollars in the last half century. After this war, two sets of widely disparate reparatory claims were made of Germany—one from its triumphant enemies, the other from its most pathetic victims. Early on in the peace process, even before World War II ended, the Allies demanded Germany pay for waging unjust war. As discussed above, in the aftermath of World War I, the norm was for defeated nations to pay reparations to the other parties; the origins of the German reparation scheme derive from these postwar restitutions. In the transition from occupied territory to sovereign state, a major provision of the 1952 Transitional Treaty with the occupying powers was the obligation to make restitution for war-related property confiscations as well as for other losses.9

The other impetus for reparations came from the victims and survivors of the millions who had died in the death camps. The accounts of the negotiations leading up to the reparations agreement among Germany, Israel, and survivor groups tell a tale of two peoples in transition, one, a defeated nation with a profound sense of moral bankruptcy, and the other, a newly created nation of survivors in fiscal bankruptcy. After extensive negotiations led by Chancellor Konrad Adenauer yielded the 1952 Luxembourg agreements, Germany agreed to pay a sum to an organization representing victims of Nazi persecution,¹⁰ as well as reparations to the new state of Israel. The Federal Compensation Law was sweeping in the scope of its redress to victims of the Nazi oppression, compensating for physical injury and loss of freedom, property, income, professional, or financial advancement if the loss resulted from persecution for political, social, religious, or ideological reasons.¹¹

Payments to victims, their representatives and the state of Israel were not contemplated by the international law of the time, nor were there precedents for such payments. Perhaps, the closest analogy was the traditional postwar reparations, in which the laws of war ever since the 1907 Hague Convention required the belligerent state violating the norms of war to pay compensation. However, this view implied adopting the fiction that Germany and Israel were “belligerent” states. Yet, not only had Israel not participated in the war, but the state did not even exist at the time of the war. Payments promised in the 1952 agreements by the Federal Republic of Germany, as in contemporary agreements after Unification,¹² diverged from the traditional understanding of war-related reparations as national in nature. The designated beneficiaries of the reparations were not a triumphant nation but, instead, the citizens of the very nation doing the compensating. They were also potential citizens of Israel, represented by the beneficiary nation. These were no ordinary postwar reparations.

The post–World War II payments changed forever the concept of reparations. After Nuremberg, dramatic developments in international law extended the norms relating to the law of war beyond the international sphere to apply to states’ internal conflicts. At the war’s end, the 1949 Geneva Conventions spurred the development of international humanitarian law, contemplating reparations for violations of civilians’ rights in all sorts of armed conflicts.¹³ The newly developing obligations under the law of war regarding reparations to abused victims of other states led to the national obligations to compensate citizens for violations. A contrary result would have meant greater remedies afforded for aliens under international law than afforded for citizens under their own national legal systems. The emergence of these obligations under international humanitarian law, in turn, led to the transitional reparatory obligations for past state wrongs assumed by successor regimes. Reparatory standards associated with the law of war have evolved and extended beyond the circumstances of international conflict to purely internal conflict.

How to understand the German reparations scheme? Wiedergutmachung was Germany’s term for the reparations, literally meaning “to make good again,” that is, to return to former conditions.14 With the failure of denazification, reparations drew political support in Germany as a way to regain credibility in the eyes of the international community. By contrast, rejecting the notion that reparations could ever make anything “good” again, victims’ groups called reparations by a Hebrew term shilumim,¹⁵ meaning “to make amends, to bring about peace.” For the victims, reparations were a matter of economic necessity, and so, for them, the point of departure in the negotiations was the refugees’ cost of resettlement. For perpetrators and victims alike, reparations were about settling accounts, but for each in a different way. Nevertheless, despite completely different understandings of the nature and purposes of the reparations scheme, negotiations over the varying concepts culminated in a political agreement.

Germany’s reparation scheme is paradigmatic of the complex conception of transitional reparations. Transitional reparatory practices are infused by mixed, backward and forward-looking, moral, economic, and political justifications. Perhaps not altogether surprisingly, reparations originating in postwar and other transitional agreements, products of political negotiations and compromise, advance divergent, and even apparently conflicting purposes. The postwar reparatory project illuminates that transitional reparatory schemes have multiple purposes, advancing the interests of individuals and collectives, victims and societies. As we shall see in exploring other similar practices in periods of political transformation, this hybrid multiple function distinguishes transitional reparatory schemes.

Dirty Wars, Disappearances, and Reconciliation: The Role of Reparations

The disappearance and presumed murder of a young man, Velásquez-Rodríguez, in Honduras in the 1980s set off a chain reaction throughout Latin America, stimulating a continent-wide reparatory policy. When Honduras failed even to investigate the disappearance, it appeared to be clearly state-sponsored, and the country was taken before the Inter-American Court of Human Rights. In a series of landmark decisions, the Inter-American Court held that Honduras had violated the American Convention on Human Rights and that states had a “duty to prevent, investigate and punish” violations of rights guaranteed by the convention.¹⁶ The court held, moreover, that whenever such rights had been violated, states were obligated to ensure victims’ compensation. Velásquez–Rodríguez held that the failure to pursue criminal justice was not simply a matter within the state’s discretion. Rather, failure to enforce norms was understood to imply the loss of important victims’ (citizens) protection rights, triggering international law duties to reparations.

The duties that Velásquez-Rodríquez recognized are manifestly transitional—that is, they both transcend and bridge regimes. Though the original right relates to the duty to equal protection under the law, once the prospective duty to protect is abrogated, subsequent “curative” duties fall on the successor regime, such as duties of investigation and of compensation. Velásquez-Rodríquez suggests that when the obligations of investigation and compensation are not fulfilled, the violations are potentially ongoing and successor regimes are responsible. While the first duty, to protect, is prospective and forward-looking, the other duties, of investigation and compensation, are retrospective and backward-looking; they are therefore potentially ongoing, open-ended, and the responsibility of subsequent regimes until satisfied.17 The very duties recognized in the case law mediate the predecessor and successor regimes, expanding the meaning of human rights protection in the transition.

Velásquez-Rodríguez set a high standard of reparatory obligation. Characterizing the disappearance as a “wrongful death resulting from serious acts imputable to Honduras,” the Inter-American Court said that the state had a duty to make both “moral” and “material” compensation to the survivors for damages suffered relating to the disappearance.¹⁸ Moreover, the expansive reparatory scheme elaborated in Velásquez-Rodríguez was a departure from Latin American legal culture, which lacks a tradition of payment for damages for official wrongdoing.¹⁹

Velásquez-Rodríguez shed a new perspective on the nature of transitional justice, reparations illuminating affinities in the criminal and civil remedies. The uses of the reparatory measures in the wake of criminal justice are evinced when, in principle, the failure to prosecute grave state wrongs is seen to implicate victims’ rights and related states’ duties, reaffirmed in subsequent decisions holding that amnesty laws violated victims’ rights under regional human rights law.²⁰ Throughout Latin America, the meaning of Velásquez-Rodríguez was that when criminal justice was unavailing, other reponses could be brought into play; that is, other legal responsibilities were owed to victims, chiefly, some form of reparations.

The norm adumbrated in Velásquez-Rodríguez raises many questions. What sort of duty is implied here, that is, what is the relation between a state’s duty to protect citizens equally and its duty to “restore” such rights? Even more threshold questions are raised: In what sense were the human rights recognized in Velásquez-Rodríguez traditional “rights”? To whom did they belong? On this view, who is harmed when equal protection rights are violated, the victims alone? Their survivors? And to what extent are there ramifications for the society? These questions arose as a part of the broader consequences of impunity policy, when many countries in the region amnestied past regime wrongdoing.

Given that amnesty policies were adopted throughout Latin America, the message of Velásquez-Rodríguez sounded insistently. After the horrors of repressive military rule, torture, executions, and disappearances, the ultimate question was whether successor regimes could “disappear” even their own pasts to oblivion? Given the region’s political past, this type of policy would be particularly perverse. When Chile returned to democratic rule, the fragility of its balance of power challenged the possibility of punishing its military, and the successor Aylwin regime turned to an alternative form of justice. As in Velásquez-Rodríguez, the state promised an official investigation into military repression, and reparatory remedies.21 Chile’s remedial scheme helps to further explicate the relation between transitional understandings of criminal and reparatory justice. When the governmental Truth and Reconciliation Commission reported that, during military rule, there had been thousands of forced disappearances and extrajudicial executions, Chile’s president, in presenting the Truth Commission’s report to the country, ascribed these crimes to official wrongdoing and went on to characterize reparations as “acts expressing the state’s admission of, and responsibility for, the events and circumstances discussed in the report.”²² In assuming the obligation to pay reparations, the successor regime took responsibility for the past regime’s wrongdoing. Despite the initial opposition to redress and the absence of a legal culture with a tradition of punitive damages for official wrongdoing, such remedial schemes became more common throughout the continent. After Chile, Argentina assumed an even broader reparatory policy, undertaking to compensate not only for disappearances but also for wrongful internment under prior junta rule.²³ In related precedents in the Inter-American Commission of Human Rights, Uruguay was also ordered to pay reparations.²⁴

Transitional precedents redefine the nature of the state’s obligation to its citizens. Much as transitional constitutions and criminal sanctions delimit changes in state sovereignty, these changes can also be defined through reparatory measures. Transitional reparations were intended to restore victims, but they also hold additional significance in the public sphere. When reparations are part of a formal public successor policy, they can critically respond to predecessor policy by correcting the derogation from equal protection under the law. Victims of military repression have been accused of subversion and annihilated as enemies of the state. They were abducted, tortured, and executed and disappeared; their children were ransomed, their property confiscated. Thus, Chile’s Truth and Reconciliation Commission recommended “moral” reparations “to publicly restore the good name of those who perished from the stigma of having been falsely accused as enemies of the state.”²⁵ In keeping with this mandate, just days after taking office, President Patricio Aylwin addressed the Chilean people in a public commemoration event held in the very stadium where, under the military junta, political prisoners had been detained. As the president recited the names of the disappeared in a national public address, their names simultaneously flashed on the stadium’s electronic scoreboard in a publication of retraction and apology to the victims of governmental wrongdoing.

As with ancient redress, Latin America’s “moral reparations” are intended to set things straight in the community and to restore dignity. The moral reparations, are intended as compensatory, not punitive.26 Moral reparations are intended to repair the shame and humiliation previously inflicted on victims and to restore their reputation and equal status in the public eye. In the ordinary, common-law understanding of defamation, liability does not survive the victim, but it does in the case of the disappeared. Moral reparations transcend redress to the affected individuals and their survivors for injury, reaching the public eye. This restoration of reputation suggests that reputation serves a broader function than in ordinary times; it serves the societal interest in the political transition. When political defamation and persecution are at stake, more than the victim’s personal reputation is on the line. While rehabilitating the disappeared, the state is also publicly acknowledging its responsibility for wrongdoing. Further, in taking responsibility, the successor regime recharacterizes the nature of the wrong; indeed, state assumption of responsibility even has the effect of reducing the amount of moral damages.²⁷ These remedies are explicitly intended to enable societal reconciliation, to bring peace to the politically riven societies of Latin America. Transitional reparatory practices display multiple purposes: backward-looking, in repairing victims of past state wrongdoing, but also forward-looking, in advancing the purposes of peace and reconciliation in the transition.

The Latin American reparations illustrate the complex roles for reparatory policies in transition. Transitional reparations serve multiple purposes. When reparations emerge as explicit alternatives to punishment, they reveal alternative ways to advance the vindication and rehabilitation accomplished through the criminal sanction. Transitional reparatory measures assume the burden of responsibility for past wrongdoing in public fashion. Indeed, the shift in emphasis from victims’ harm to state’s wrongdoing is particularly clear in moral reparations. As with criminal justice, in the state’s assumption of responsibility expressed through its public redress, wrongdoing is identified and, relatedly, blame is assumed for past wrongs. In addition to sanctioning wrongdoers, reparations vindicate victims.²⁸ Through formal legal responses recognizing the juridical status of the disappeared, reparatory justice reconstructs the borders of political community.

Because of their versatility, reparatory practices have become the leading response in the contemporary wave of political transformation. “Truth and reparations,” a response combining reparations with the historical inquiry discussed more fully in the previous chapter, has become the dominant way to resolve agonizing conflicts throughout Latin America and elsewhere. Protracted civil war was settled in El Salvador on the promise of an investigative commission and reparatory remedies.²⁹ A similar formula brokered the peace in Guatemala.³⁰ In South Africa, an amnesty became part of the transition agreement in exchange for “truth and reconciliation.” The country’s 1993 Constitution, entitled “National Unity and Reconciliation,” provides: “In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past.”³¹ As interpreted by the country’s Constitutional Court, amnesty’s core minima include the clarification of past political crimes and their reparation;³² thus, in South Africa, the two are concededly connected. Despite the legislative rule, the amnesties are conditional in South Africa and, therefore, imply case-by-case determinations predicated on some investigation into the past wrongdoing. The promise of reparations served as incentives for victims to testify in the country’s public proceedings; and, as the South African Truth Commission’s report nears finality, reparatory measures are known to be part of its proposed recommendations. In all the transitions above discussed, the criminal sanction was eschewed for a hybrid form of reparatory justice.

The uses of transitional reparatory measures, as discussed above, by successor regimes as alternatives to punishment challenge our intuitions about what distinguishes civil and criminal sanctions. Supposed criminal/civil antinomies do not well account for transitional practices. For transitional reparatory practices redress individual rights violations, even as they express responsibility for past criminal wrongdoing, these combined aims defy conventional categorization as either criminal or corrective justice. The transitional reparatory practices discussed above enable the public recognition and condemnation of wrongdoing in a way that is generally considered the criminal sanction’s distinguishing feature. At common law, the nature of the wrong was considered to be bound up with the nature of the harm, hence, public and private to correspond to criminal and civil. As William Blackstone wrote, “[P]rivate wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individual, public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, due to the whole community.”33 Though this distinction is the point of departure at common law; nevertheless, in the modern state, the way we think about these ostensible differences in criminal and corrective justice has undergone change. This is dramatically vivified in transition.

Transitional reparatory practices challenge the understanding that the distinguishing feature of criminal justice (as opposed to civil justice) is the dominant role of the state, as these reparatory schemes imply substantial state involvement.³⁴ This understanding is also challenged by the many private initiatives in transitional criminal justice. In periods of political transition, private parties, such as victims or their representatives, have often taken the prosecutorial lead. This private initiative is true historically; virtually all efforts after the immediate postwar period to bring to trial World War II criminals resulted from private initiatives.³⁵