Lisa J. Laplante of the University of Connecticut School of Law has a new paper, "Negotiating Reparation Rights: The Participatory and Symbolic Quotients," up on ssrn. Laplant's important article reminds me yet again how much new and excellent work is being done on reparations -- a topic that was almost abandoned by legal scholars there for a few years. Laplante's interested in several problems -- beginning with the sad fact that there are insufficient funds to repair for past gross injustices. Her laboratory is Peru, which emerging from an oppressive regime. She focuses on two issues -- the right of victims to participate in the new government and also to receive something in the way of symbolic reparations. (I'm rather skeptical of rights of participation -- I seem them as the democracy version of transparency -- necessary but far from sufficient; and also often rather over-rated as focal points of relief.) Yet, these are important starting points; and one must recognize that they may be all that's available -- if they are even available.
Cribbing now from Laplante's abstract:
With each new transitional justice experience, the centrality and importance of providing reparations to victims becomes more evident. Reparations include both pecuniary payments and non-pecuniary goods and services to redress serious harms caused by political violence and conflict. They also signal the condemnation of the underlying crimes that caused such harm. Correspondingly, truth commissions typically recommend that governments institute reparations programs. Yet, when governments take up these recommendations, they face difficult implementation decisions. This reality is particularly true with regard to the distribution of individualized economic reparations as a response to widespread political violence, such as that caused by apartheid, armed conflict, repressive and authoritarian regimes, and other situations that leave a large universe of victims with diverse types of harms and suffering. Because of the extraordinary nature of such situations, governments generally opt for large scale administrative reparation programs in which a single quantum can be distributed to all qualified beneficiaries. Yet, because such a quantum is not tailored to individual suffering and is often significantly inferior to any civil damage award that could be expected from individual litigation, economic reparation programs always run the risk of rejection by the very population they are intended to benefit: the victim-survivors. This Article explores this contemporary problem by looking at Peruvian government’s experience with implementing a national economic reparations program and meeting great resistance and even rejection from victim-survivors. While such difficulties can never be completely avoided, this Article proposes two ways in which the Peruvian government could have safeguarded against this worrisome outcome. First, the Peruvian government would have cultivated more buy-in to its program had it guaranteed the right to participation and ongoing consultation with the intended beneficiaries. Victims may accept a monetary amount that falls short of what could be won in court if they feel they were genuinely listened to and considered in the technical calculations through a consultation process that is meaningful. This aspect of the reparation program is referred to as the “participatory quotient.” Second, while negotiations may occur with regard to the actual modality and means of distributing economic reparations, it should never compromise what is referred to as the “symbolic quotient” of economic reparation programs: the need to acknowledge the wrongdoing and convey the State’s assumption of responsibility and contrition for having caused or permitted victim harm. Even if the government is in a position to distribute generous monetary packages, if it does so without recognition of the violation of rights, the population will undoubtedly question and even reject these measures. Money alone does not symbolize an apologetic stance but must be accompanied by statements and acts of recognition. While some may argue that compensation contains an inherent symbolic element of recognition, this Article contends that an explicit acknowledgment of wrongdoing is necessary to maximize the reparative effect and to prevent against outright beneficiary rejection of pecuniary measures.
I recall the grim truth of historical injustice that those most injured are often left with limited resources and to fend for themselves. But I'm glad that there is increasing attention to what has been done and what might yet be done in international as well as a domestic context.
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