Reparations as balance

Reparations are often justified as a means to ensure “peace,” “reconciliation,” or to “vindicate victims” (Bottigliero, 2004, p. 14; Greiff, 2006, pp. 463–466; Laplante, 2015, pp. 555–557). The justification of reparations range from corrective justice notions of restitutio in integrum (returning all that is lost) to moral notions of recognition and relational restoration, to even communitarian notions of engendering civic trust, social cohesion and transformative explanations of the place of reparations in post-conflict societies. Reparations can seem almost Janus-faced, allowing a broad umbrella of conceptions and expectations to co-exist, but it is worth interrogating the justifications of reparations, as it can help to “serve to clarify the nature and the full extent of our normative commitments” (Greiff, 2012, p. 33).

This article analyses some of the main justifications for reparations so as to challenge some of their normative assumptions in redressing the past. The discussion focuses on three predominate concepts of reparations namely justice, morality/recognition and reconciliation/relational justifications. These accounts do not fully reflect the practice of reparations for mass atrocities, which creates a normative account that is either too utopian to be realized or inadequately provides the conceptual tools to navigate moral challenges to realize effective reparations. Indeed more critical scholars working on these issues point to “rough” or “imperfect” justice (Eizenstat, 2003), but do not provide a coherent account to what this theoretically amounts to. Instead this author proposes reparation as balance to reflect that such measures in practice are part of a negotiated process. Reparation as balance involves the relevant stakeholders finding common ground to redress the past and prevent its non-recurrence in the future. This point is referred to as the “goldilocks' zone” wherein reparations can be conceived as a space to which conflicting perspective can find a harmony to redress the past through a spectrum of measures. Such a position does not fully repair victims' harm as required by restitutio in integrum, but also does not compromise society's values nor is humiliating to those responsible. This approach envisages reparations as not simply a victim-centered measure to remedy their harm, but also a space for responsible actors to rehabilitate their own moral position in the present and future from their past actions. “Reparations as balance” is informed by many contemporary struggles for reparations by victims, but also an understanding of what has succeeded in practice.

Reparations are a means to find equilibrium after violence, a way to move forward from the violations of the past. There are elements in each of these theories that resonate around the importance of values, the actors' relationship (whether social or not) between perpetrators and victims created through violence that gives rise to an obligatory connection for repair (whether legal, moral, or social), the role of process and the limits of the law. These elements provide some insight into the substance of reparations in responding to mass violence. Having a pluralistic understanding can help to implement reparations through different avenues of law, moral claims-making, or promoting reconciliation through peacebuilding. Moderating demands and finding balance resonates with reconciliation accounts that affected parties may forgo the fullness of their demands in order to achieve higher moral goals (May, 2012, p. 216). At the same time reparations are contested and contentious, situating their end point as “finding a balance” helps to reflect different interests, appreciate the power dynamics involved in negotiating reparations and the pervasive structures of violence. This section outlines what reparations as balance involves. It begins by setting out the broad conceptual structure of reparations as balance, before moving onto constitutive elements of victim agency, ownership of responsible actors, and assessing the balance. This section ends by considering the place of values in shaping the contested space of claiming reparations into a more harmonious one where they are acceptable.

A balance-based approach to reparations requires moving away from a corrective justice perspective, where parties of equal standing are trying to find common ground of agreement, such as in a contract. Reparations require those responsible to make amends for the harm they have caused, which is a polemic issue. The claims by victims of the conflict in Peru were made by mostly marginalized, poor, Quecha speaking peasants, seeking redress for violence committed by the State and armed groups like the Shining Path. Their leaders were branded as “terrorists,” despite having their children disappeared in counter-insurgency operations, so there was no equal bargaining power or common grounds of agreement to situate a corrective justice basis for reparations. Instead through social movements, litigation and political shifts that saw President Fujimori flee the country, a space opened for reparations to be negotiated between victims and their civil society allies and the new government (Laplante & Theidon, 2007).

Reparations as balance intends to theoretically explain the practice of reparations for gross violations of human rights. As can be seen from the discussion in the first section, reparations as balance draws from other theories that aim to explain the phenomenon of redressing the past. A justice justification of reparations too strongly demands restitution of all that is lost in order to equate redress with the harm caused. A moral justification for reparations, concentrates on recognition, where although acknowledgement is often valued by victims, not all of them will want the burden of recognition or see the worth of reparations being a message vindicating their suffering. A reconciliatory account of reparations is premised on repairing the relations between victims and those responsible in order to prevent the repetition of violence. While this is important to ensure peaceful and stable societies, the nature of gross violations means that victims will not know their perpetrator or will want a relationship with them.

A balance approach better reflects the justification of reparations as an agonistic space where victims and responsible actors/perpetrators struggle to find the sweet-spot where they can reach a value-based compromise on redress. From a victim's perspective, s/he struggles for reparations to challenge the impunity of those responsible, to secure measures to alleviate their suffering, both material and moral. At the same time, they recognize that no amount of reparations is going to correct the harm they have suffered or lead to reconciliation, but to provide some form of balance to their life moving forward. For those responsible, making reparations is a way to address some of victims' claims and prevent further negative attention or to rehabilitate their own image. In all, a balance approach better reflects reparations as not simply an extension of corrective justice, moral justifications or reconciliation, but a contested and dynamic space that can encompass of these elements. The nature of victims' struggle for redress and resistance by those responsible to heed such claims, expose the polemic nature of redress. In all, while reparations can be their own moral, justice, and political contest over the wrongs of the past, when they ultimately are made is where the affected parties can find common ground in balancing their competing interests.

The author declares no conflict of interest.