ArticlePDF Available

Thinking Past Rights: Towards Feminist Theories of Reparations

Authors:

Abstract

The notion of reparations encompasses debates about the relationship between individual and society, the nature of political community, the meaning of justice, and the impact of rights on social change. In international law, the dominant approach to reparations is based on individual rights. This normative framework is out of step with the understanding of reparations circulating among many women activists. I develop a theoretical approach to justice and reparations that helps to explain the gap between the international normative framework and activist discourses. Based on distributive, communitarian, and critical theories of justice, I argue that reparations can be thought of as rights, symbols, or processes. Understanding reparations as either rights or symbols is rife with problems when approached from an activist and feminist theoretical standpoint. As decisions about reparations programs are and should be determined by the political, social, economic, and cultural context, a blueprint for ‘a feminist reparations program’ is impractical and ill-advised. However, the strongest feminist approach to reparations would depart from an understanding of reparations as a process. La notion de réparations tient compte des relations entre l’individu et la société, de la nature du politique, de la signification de la justice et de l’incidence des droits dans le changement social. En droit international, l’idée dominante à cet égard est fondée sur les droits individuels. Ce cadre normatif est en décalage avec l’idée que de nombreuses militantes se font des réparations. J’ai élaboré une façon théorique de voir la justice et les réparations qui aide à expliquer l’écart entre le cadre normatif international et le discours militant. Selon cette approche fondée sur des théories distributives, communautaires et critiques de la justice, j’affirme que les réparations peuvent être vues comme des droits, des symboles ou des processus. D’un point de vue théorique militant ou féministe, le fait de considérer les réparations comme des droits ou des symboles s’accompagne de nombreux problèmes. Étant donné que les décisions au sujet des programmes de réparations sont et doivent être déterminés en fonction du contexte politique, social, économique et culturel, la conception d’un programme de réparations féministe est peu pratique et mal avisée. Toutefois, la meilleure approche féministe face aux réparations s’écarterait de la vision selon laquelle celles-ci constituent un processus.
(2012) 30 Windsor Y B Access Just 1
THINKING PAST RIGHTS: TOWARDS FEMINIST THEORIES OF
REPARATIONS
Genevieve Renard Painter*
The notion of reparations encompasses debates about the
relationship between individual and society, the nature of
political community, the meaning of justice, and the impact of
rights on social change. In international law, the dominant
approach to reparations is based on individual rights. This
normative framework is out of step with the understanding of
reparations circulating among many women activists. I develop
a theoretical approach to justice and reparations that helps to
explain the gap between the international normative framework
and activist discourses. Based on distributive, communitarian,
and critical theories of justice, I argue that reparations can be
thought of as rights, symbols, or processes. Understanding
reparations as either rights or symbols is rife with problems
when approached from an activist and feminist theoretical
standpoint. As decisions about reparations programs are and
should be determined by the political, social, economic, and
cultural context, a blueprint for ‘a feminist reparations
program’ is impractical and ill-advised. However, the strongest
feminist approach to reparations would depart from an
understanding of reparations as a process.
La notion de réparations tient compte des relations entre
l’individu et la société, de la nature du politique, de la
signification de la justice et de l’incidence des droits dans le
changement social. En droit international, l’idée dominante à
cet égard est fondée sur les droits individuels. Ce cadre normatif
est en décalage avec l’idée que de nombreuses militantes se font
des réparations. J’ai élaboré une façon théorique de voir la
justice et les réparations qui aide à expliquer l’écart entre le
cadre normatif international et le discours militant. Selon cette
approche fondée sur des théories distributives, communautaires
et critiques de la justice, j’affirme que les réparations peuvent
être vues comme des droits, des symboles ou des processus.
* PhD. Student, University of California-Berkeley, Jurisprudence & Social Policy. I am grateful to
the members of the Coalition on Women’s Human Rights in Conflict Situations. I also thank
Kathryn Abrams, Rashida Manjoo, Colleen Sheppard, Anne Saris, Gisèle Eva Côté, Isabelle
Solon Helal, Ariane Brunet, Binaifer Nowrojee, Nicola Painter, and Andrew Deak. This paper
was awarded the 2011 Audre Rapoport Prize for Scholarship on Gender and Human Rights and
the 2011 International Studies Association’s prizes from the Human Rights Section and the
Feminist Theory and Gender Studies Section.
2 Windsor Yearbook of Access to Justice 2012
D’un point de vue théorique militant ou féministe, le fait de
considérer les réparations comme des droits ou des symboles
s’accompagne de nombreux problèmes. Étant donné que les
décisions au sujet des programmes de réparations sont et
doivent être déterminés en fonction du contexte politique, social,
économique et culturel, la conception d’un programme de
réparations féministe est peu pratique et mal avisée. Toutefois,
la meilleure approche féministe face aux réparations
s’écarterait de la vision selon laquelle celles-ci constituent un
processus.
I. INTRODUCTION & OVERVIEW
In the aftermath of conflict, a range of strategies emerge to cope with its political,
social, economic, and cultural consequences. Women have frequently been at the
forefront of demands for justice and reconciliation following periods of conflict.
From activist and academic quarters, feminist critiques of the post-conflict justice
agenda have emerged. This paper offers a feminist critique of reparations
1
for
massive human rights crimes in times of conflict.
Grave human rights crimes in violent conflict are contexts that have been
framed by governments and activists as transitional justice sites. Reparations is a
concept that is relevant in other contexts, including reparations between states
under the rules of state responsibility, reparations through court processes such as
suits brought under the US Alien Tort Claims Act, and reparations for historical
injustices, like slavery and colonialism. Their exclusion from this paper is not
meant to suggest that a gender analysis of these areas is unnecessary. The focus on
transitional justice derives from the observation that this context brings with it an
institutional structure (UN, states, NGOs), norms (human rights, international law,
development), and communities (diplomats, consultants, NGO activists).
A feminist analysis starts from the position that sex and gender matter and that
they interact with other important axes of differentiation, like race, ethnicity, class,
and age. From this awareness, a common characteristic of feminist analysis is the
effort to reveal features of an issue which other methods overlook.
2
This includes
identifying the gender implications of rules and practices which otherwise appear
to be neutral and observing real-life dilemmas from the perspective of the
excluded.
According to one framework, a feminist approach to post-conflict prioritizes
socio-economic issues, challenges the capitalist development which unfolds in the
transitional context, demands the inclusion of non-elite actors in political
processes, and draws attention to the way in which “violence against women often
alters in form, rather than prevalence, post-transition.”
3
Drawing on this
framework, the feminist approach that I take in this paper acknowledges that there
is no universal, final, or objective truth. The act of feminist theorizing must
possess an explicit awareness of the partiality of knowledge and the need to
1
I refer to reparations, as a concept, in the singular.
2
Katharine T Bartlett, “Feminist Legal Methods” (1990) 103 Harv L Rev 829.
3
Christine Bell & Catherine O’Rourke, “Does Feminism Need a Theory of Transitional Justice?
An Introductory Essay” (2007) 1 International Journal of Transitional Justice 23 at 42-43.
Vol. 30(1) Thinking Past Rights 3
recognize one’s standpoint and travel from it.
4
As Lacey argues, there is never one
feminist analysis of a social problem, rather it is the beginning of an analytic
journey.”
5
Post-modern and Third World feminists have argued that the imposition
of one theory may deny the particularity of people’s experiences and privilege the
voices of the dominant over the marginal.
6
In light of these feminist theories and
the contextually-bound nature of any transitional justice moment, this paper offers
an improved, rather than a true, understanding of reparations, women, and conflict.
The paper begins by providing an overview of the issues that emerge when
studying conflict from a gender perspective. It then explores the meaning of
reparations in international law, human rights law, international criminal law, and
UN principles, demonstrating that the dominant approach to reparations is based
on individual rights. The next section analyzes the understanding of reparations
among activists concerned with women and gender equality. This analysis shows
that activists have a very broad understanding of reparations which goes far
beyond the dominant rights-based approach to reparations. With the aim of
understanding the gap between the international normative framework and activist
discourses, the next sections of the paper offer theoretical approaches to justice
and reparations. A working framework for defining and analyzing reparations is
proposed. It argues that reparations programs incorporate a vision of justice,
including conceptions of the self, the role of the law, and the remedies to injustice.
By asking why reparations programs are established, it is possible to establish a
typology of the nature of reparations, as rights, symbols, or processes. The last
section offers a feminist theoretical approach to reparations. I analyze the feminist
problems raised by approaching reparations as either rights or symbols. In contrast
to the dominant, individual rights-based model, I conclude that understanding
reparations as a process best achieves a reconciliation between activist approaches
to reparations and theories of justice.
II. GENDER AND CONFLICT
Gender roles structure human interaction in times of war and peace and inform
political, legal, and cultural responses to the task of peace-building. The trope of
men fighting war on the front and women and children staying safe at home does
not reflect the reality of war.
7
War comes to civilians, targeting them in their cities,
villages, fields, and homes. Only five percent of casualties in the First World War
were civilians, whereas civilians accounted for up to 90 percent of casualties in the
4
Here, I refer to feminist theoretical methods discussed in: Mari Matsuda, “When the First Quail
Calls: Multiple Consciousness as Jurisprudential Method” (1989) 11 Women’s Rights Law
Review 7; Maria C Lugones & Elizabeth V Spelman, “Have we got a theory for you! Feminist
theory, cultural imperialism, and the demand for ‘the woman’s voice’” (1983) 6:6 Women’s
Studies International Forum 573; Brenda Cossman, “Turning the Gaze back on Itself:
Comparative Law, Feminist Legal Studies, and the Post-colonial Project” (1997) 2 Utah Law
Review 525.
5
Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart
Publishing, 1998) at 13.
6
Chandra T Mohanty, “Under Western Eyes: Feminist Scholarship and Colonial Discourses” in
Chandra T Mohanty et al, eds, Third World Women and the Politics of Feminism (Bloomington,
IN: Indiana University Press, 1991) 51.
7
Amani El Jack, Gender and Armed Conflict: Overview Report (Brighton: Institute of
Development Studies, 2003) at 9.
4 Windsor Yearbook of Access to Justice 2012
1990s.
8
Forced displacement, sexual violence, and abduction into fighting forces
are common civilian experiences in wartime.
9
Women and men experience
wartime violence differently. Sexual violence is largely inflicted on women,
although men and boys are sometimes victims too. Men usually fight the wars,
while the majority of women do not take up arms.
10
Narratives about masculinity and femininity pervade our understandings of
conflict. Armed conflict propagates a hyper-masculinized understanding of what it
means to be a man (soldier-citizen) and a hyper-feminized understanding of what
it means to be a woman (nurturing mother and symbol of the nation).
11
These
expressions of heteronormative gender identity damage both men and women:
men (often) die in war, women (sometimes) survive rape and take care of the
young, injured, and elderly. Non-conforming gender identities are rendered
invisible by these constructions.
12
Women and girls may voluntarily join or be
forced into armed groups. Men and boys are sometimes victims of sexual violence;
others may refuse to fight and be ostracized as cowards. Gender is part of the
architecture of conflict.
Conflict increases and exacerbates pre-conflict forms and levels of violence
against women.
13
As communities break down during conflict, intimate partner
violence increases. Women are also exposed to new forms of violence, as victims
of rape by soldiers, occupying armed forces, or peacekeepers.
14
Being ‘safe at home’ in times of peace is a reality that few women experience,
given the prevalence of domestic violence. On average, at least one in three
women is exposed to intimate partner violence in the course of their lifetimes.
15
For this reason, feminists challenge the line between peace and conflict. Though
the warring sides may have declared peace, women experience forms of violence
on a continuum only partially addressed, or not at all, by cease fires and peace
processes.
16
Feminist research on sexualized violence in conflict has demonstrated the
connections between the acceptance of domestic violence and the use of rape as a
weapon of war.
17
Survivors and domestic violence support centres have witnessed
this continuity, as the rates of domestic violence have increased with periods of
8
United Nations, “Women, Peace and Security: Study submitted by the Secretary-General pursuant
to Security Council resolution 1325” (2000). [“Women, Peace”]
9
Ibid at para 4.
10
Sheila Meintjes, Anu Pillay & Meredeth Turshen, eds, The Aftermath: Women in Post-conflict
Transformation (New York: Zed Books, 2002) at 6.
11
Kimberly Theidon, “Reconstructing Masculinities: The Disarmament, Demobilization, and
Reintegration of Former Combatants” (2009) 31 Hum Rts Q 1 at 3.
12
El Jack, supra note 7 at 6.
13
Meintjes et al, supra note 10 at 4.
14
El Jack, supra note 7 at 16.
15
UN Division for the Advancement of Women, Background note on "Forms, consequences and
costs of violence against women", 9 October 2006 [“Forms”].
16
Theidon, supra note 11 at 31.
17
Caroline ON Moser & Fiona C Clark, eds, Victims, Perpetrators or Actors? Gender, Armed
Conflict and Political Violence (London: Zed Books, 2001).
Vol. 30(1) Thinking Past Rights 5
militarization in Northern Ireland, Croatia, and the United States.
18
Other research
has uncovered the parallels between torture techniques used in Latin American
prisons and patterns of child abuse.
19
The enormous upheavals of armed conflict sometimes produce disruptions in
gender roles. The absence of men and boys from families and communities can
result in women and girls taking on new roles, skills, and status. Although conflict
can create a space for temporary redefinition of gender relations, very few equality
gains are sustained.
20
Women are frequently told that their claims for equality must
wait, with the implication that government policies to undermine patriarchy could
destabilize a fragile peace.
21
According to Franke, “rebuilding post-conflict
societies is almost inevitably a process of re-masculinization.”
22
Some researchers
attribute high levels of domestic violence in post-conflict periods as an attempt to
re-establish normal pre-war gender relations.
23
For example, gender-related
violence remains common in post-conflict Rwanda.
24
Community violence
(ranging from verbal obscenities to physical violence) seems particularly targeted
at literate, educated, employed women in the public sphere, suggesting that
violence may be a way to protest women’s emancipation.
25
Any sustained changes
for women tend to occur at the micro-level. For example, women’s associations,
formed during conflict for mutual support, will sometimes evolve into peacetime
women’s organizations.
The laws of war and the business of peace negotiations push gender to the
sidelines.
26
Women activists have tried to put gender on the agenda, by talking
about women’s experiences in wartime.
27
There has been some headway, as
international law and transitional justice processes now recognize sexual violence
in war as an issue. Much attention has been devoted to ensuring that sexual
violence crimes are punished by national and international criminal justice
systems,
28
truth commissions are gender-sensitive,
29
and disarmament and
18
Liz Kelly, “Wars Against Women: Sexual Violence, Sexual Politics and the Militarised State” in
Susie Jacobs, Ruth Jacobson & Jennifer Marchbank, eds, States of Conflict: Gender, Violence and
Resistance (London: Zed Books, 2000) 45; see also, Cynthia Grant Bowman, “Theories of
Domestic Violence in the African Context” (2003) 11 Am U J Gender Soc Pol’y & L 847 at 856.
19
Ibid.
20
United Nations, “Women, Peace” supra note 8 at para 55.
21
Nahla Valji, “Gender Justice and Reconciliation” (2007) online: Friedrich Ebert Stiftung
<http://library.fes.de/p-df-files/iez/05000.pdf> at 7.
22
Katherine M Franke, "Gendered Subjects of Transitional Justice" (2006) 15:3 Colum J Gender &
L 813 at 824.
23
Tristan Anne Borer, “Gendered War and Gendered Peace: Truth Commissions and Postconflict
Gender Violence: Lessons From South Africa” (2009) 15(10) Violence Against Women 1169 at
1172; see also Meintjes et al, supra note 10.
24
Heidy Rombouts, “Women and Reparations in Rwanda: A Long Path to Travel” in Ruth Rubio-
Marin, ed, What Happened to the Women: Gender and Reparations for Human Rights Violations,
(New York: Social Science Research Council, 2006) at 206 [Rombouts, 2006].
25
Ibid.
26
Bell & O’Rourke, supra note 3 at 24.
27
Cynthia Cockburn, From Where We Stand: War, Women's Activism and Feminist Analysis
(London: Zed Books, 2007).
28
Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes
Tribunals (The Hague: M Nijhoff Publishers, 1997); Rhonda Copelon, “Gender Crimes as War
6 Windsor Yearbook of Access to Justice 2012
demobilization programs address women’s experiences as conflict actors.
30
There
are nascent efforts for a gender-just approach for reparations. These gains are very
limited, however. Putting sexual violence on the agenda has not led to a
recognition that gender norms of masculinity and femininity are central to war
and peace.
31
Human security is a deeply gendered phenomenon.
III. THE DOMINANT APPROACH TO REPARATIONS FOR VICTIMS
For many victims and survivors struggling to put their lives back together after
brutal conflict, reparations may be the policy decision with the most direct impact
on their day-to-day lives. In order to begin articulating an approach to reparations
that is conscious of gender, the next section will discuss the dominant approach to
reparations in the transitional justice field.
Reparations occupies a wide analytical and practical field: it is an element of
international law and a key feature of many countries’ political and legal responses
to conflict. The international regimes on state responsibility, human rights, and
criminal law and domestic criminal, civil, and regulatory law may be involved in a
country’s reparations decisions. The term “reparations” has two main uses: a broad
juridical term, chiefly used in international law, which covers all forms of redress
for harms suffered as a consequence of certain crimes, and a narrower term to
describe administrative programs which attempt to provide benefits directly to
certain victims.
32
Norms and practice in law and policy have centred on developing and
strengthening a framework for reparations based on individual rights. This can be
seen in international law, human rights law, international criminal law, and UN
guidelines.
A. State Responsibility as a Source of Reparations
Under international law, a wrongful act is conduct, attributable to the state, in
breach of the state’s international obligations.
33
Reparation by the state must, as far
as possible, wipe out the consequences of the illegal act and re-establish the
situation which would have existed but for the wrongful act.
34
However, the
obligations under international law are obligations between states, not obligations
between states and individuals, and reparations are paid to the injured state, not to
Crimes: Integrating Crimes Against Women into International Criminal Law” (2000) 46 McGill L
J 217.
29
Vasuki Nesiah, ed, “Truth Commissions and Gender: Principles, Policies, and Procedures” (New
York: International Center for Transitional Justice, 2006).
30
Theidon, supra note 11.
31
Catherine O'Rourke, “The Shifting Signifier of ‘Community’ in Transitional Justice: A Feminist
Analysis” (2008) 23 Wisconsin Journal of Law Gender & Society 269 at 284.
32
Pablo de Greiff, “Justice and Reparations” in Pablo de Greiff, ed, The Handbook of Reparations
(New York: Oxford University Press, 2006) 451 at 452 [de Greiff, 2006].
33
Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the
International Law Commission, UN GAOR, 56th Sess., Supp. No. 10. UN. Doc A/56/10,
chp.IV.E.1, (2001) at Art 31(1).
34
Case Concerning the Factory at Chorzow (Claim for Indemnity) (Merits), [1928] PCIJ, ser. A,
No. 17 at 47-48.
Vol. 30(1) Thinking Past Rights 7
the individual.
35
Where large numbers of victims have been harmed by the
wrongful conduct of a state, victims’ reparations claims have been settled by
claims commissions or arbitral tribunals. Resistance to an individual right to
reparations remains commonplace. For example, in 1995 and 2002, Japan’s Tokyo
District Court denied compensation to Chinese nationals for atrocities suffered
during World War II, on the basis that a state is under no obligation to pay
damages to individuals of another state when that state has infringed its
obligations under international law.
36
The UN Compensation Commission [UNCC] represents a departure from
traditional application of the state responsibility rules denying individual rights to
reparation.
37
Following the ousting of Iraq from Kuwait in 1991, the UN Security
Council established the UNCC to process claims and pay monetary compensation
for losses during the invasion and occupation of Kuwait. The UNCC has the effect
of giving individuals limited standing to apply for reparations for breaches of
international obligations. Compensation was not provided to injured states, as in
the classical framework on state responsibility, but directly to individuals and
corporations.
B. International Human Rights Law: Treaty-based Recognition of Right to
Reparations
The right to redress is enshrined in some international and regional human
rights instruments. The International Covenant on Civil and Political Rights
[ICCPR] provides the right to a remedy,
38
but this remedy consists of procedural
rights and obligations, like the duty of the state to investigate the violation.
39
In
contrast to the ICCPR, the Convention on the Elimination of all forms of Racial
Discrimination and the Convention against Torture provide for a specific right to
reparation.
40
However, none of the bodies monitoring compliance with these
treaties has legal competence to order reparations. They do not create a right which
can be invoked directly at the international level by an individual.
41
Thus, the
international human rights framework around reparations is still built around rights
and obligations among states.
In contrast to the international human rights treaties, regional human rights
treaties may give an individual standing in international law to claim a right of
reparation. Article 50 of the European Convention on Human Rights and Article
35
Antonio Cassese, International Law (Oxford: Oxford University Press, 2001) at 48.
36
Ilaria Bottigliero, Redress for Victims of Crimes under International Law (Leiden: Martinus
Nijhoff Publishers, 2004) at 85.
37
Ibid at 89-95.
38
International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN GAOR, 21st
Sess., Supp. No. 16, at 52, UN Doc. A/6316 (1966), 999 UNTS 171, Arts 2, 3.
39
Bottigliero, supra note 36 at 116-123.
40
Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 UNTS
195, Art. 6; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, UN GAOR, 39th Sess., Supp. No. 51, at 197, UN DOC A/39/51
(1984), Art. 14.
41
Riccardo Pisillo-Mazzeschi, “International Obligations to Provide for Reparations Claims?” in
Albrecht Randelzhofer & Christian Tomuschat, eds, State Responsibility and the Individual:
Reparation in Instances of Grave Violations of Human Rights (The Hague: Martinus Nijhoff
Publishers, 1999) 149 at 171.
8 Windsor Yearbook of Access to Justice 2012
63(1) of the American Convention on Human Rights create the possibility that an
international court might directly require a wrongful state to make reparations to
the injured individual.
42
A landmark decision of the Inter-American Court argued
that the individual’s right of reparation extended beyond the domestic state’s
provisions for reparation, thus suggesting an independent individual right of
reparation not defined or mediated by the state.
43
Like the Inter-American Court,
the European Court of Human Rights has affirmed that the right to a remedy
includes compensation and procedural rights.
44
However, the European Court’s
awards for reparations have been more limited than those given by the Inter-
American Court, as they have not ordered rehabilitation, clearance of victims’
names, or initiation of investigations.
C. International Criminal Law
Contemporary mechanisms of international criminal adjudication have
included recognition of victims’ right to redress. The Statutes of the International
Criminal Tribunals for Yugoslavia and Rwanda contained a limited recognition of
an individual’s right to reparations, while the Rome Statute of the International
Criminal Court [ICC] has gone further.
The Statutes of the International Criminal Tribunal for Rwanda [ICTR] and
International Criminal Tribunal for Yugoslavia [ICTY] permit the Tribunals to
order only one form of victim redress: the restitution of unlawfully taken
property.
45
The unlawful taking of property must be associated with a crime under
the Statute and must be the object of a specific finding in the judgment.
46
The final
judgments of the ICTY and ICTR have not issued a single restitution order nor
referred compensation matters to a national body.
47
Faced with criticisms that the Tribunals were participating in denying victims’
rights to redress, Carla del Ponte, (then) Prosecutor of the ICTY and the ICTR,
called for a more efficient system for victim compensation.
48
However, the
Security Council and the Judges of both tribunals opposed this suggestion, arguing
that the additional workload to deal with reparations claims would negatively
impact the tribunals’ ability to prosecute accused, would be impossible in practical
42
Ibid.
43
Velásquez Rodríguez Case, Reparations (Honduras) (1999) Inter-Am Ct HR (Ser. C.) No. 7 at
paras 30-31; for more on the IACHR, see Judith Schonsteiner, “Dissuasive Measures and the
'Society as a Whole': A Working Theory of Reparations in the Inter-American Court of Human
Rights” (2007) 23(1) Am U Int’l L Rev 127.
44
Aksoy v Turkey (1996) 23 Eur HR Rep 553 at para 98.
45
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991, S.C. Res. 827, UN SCOR, 48th Sess., 3217th mtg., Annex, UN Doc S/827
(1993), Art. 24(1) [ICTY Statute]; Statute of the International Criminal Tribunal for the
Prosecution of Persons Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Other Such Violations Committed
in the Territory of Neighboring States, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg.,
Annex, UN Doc S/955 (1994), Art 23(1) [ICTR Statute].
46
Bottigliero, supra note 36 at 198.
47
Ibid at 202-203.
48
Carla del Ponte, “Address to the UN Security Council by Carla del Ponte, Prosecutor of the ICTY
and ICTR” 21 November 2000, ICTY Doc. JL/P.I.S./542-e of 24 November 2000.
Vol. 30(1) Thinking Past Rights 9
terms, and could lead to unfairness, as only those victims whose perpetrators were
tried by the Court would be eligible for compensation.
49
In spite of this consistent stance of the Judges of the tribunals, the former
Registrar of the ICTR initiated a modest assistance program targeted at witnesses
and potential witnesses. The program provided legal assistance, housing, and
psychological assistance, via Rwandan women’s NGOs. The most infamous
project, the construction of a peace village in Taba, was designed to give
something back to the women from Taba who had testified in the watershed
Akayesu trial (in which rape was recognized as an act of genocide).
50
The program
was a token recognition of the need for reparations for victim-witnesses, but it was
roundly criticized. In Rwanda, critics complained that only 50% of the promised
amounts were transferred, and that the selection of people for the 23 houses built
in Taba was unfair. At the UN level, the Security Council was concerned that the
Statute of the ICTR did not allow this type of social assistance program, and so the
program was officially closed in December 2001.
51
In a marked departure from the reticence of the ad hoc international criminal
tribunals, the Statute of the International Criminal Court recognizes the right of
victims to obtain individual reparations and provides mechanisms for this purpose.
The vastly expanded capacity of the ICC to award reparations resulted from
lobbying by women’s groups and victims’ rights groups and some State
delegations during the 1998 Rome Conference.
52
Once an individual is found guilty of a crime under the ICC’s jurisdiction, the
Court has the power to determine the scope and extent of damages, losses, and
injuries suffered by victims.
53
This can occur either through a request from victims
or on the Court’s own motion. The Court may make an order directly against the
convicted person or may order that the award be made through the ICC Trust Fund
for Victims. Reparations may be awarded in the form of restitution of property,
compensation, rehabilitation, or other forms. Thus, the emergence of an individual
right to reparation can be observed in international criminal law.
D. UN Standards and Norms
Alongside the development of a right to reparations in international human
rights treaties and international criminal law, soft-law, non-binding instruments
have stressed the importance of reparations for victims of human rights violations.
The most comprehensive attempt to develop a body of principles around
reparations occurred under the auspices of the Commission on Human Rights.
Through the efforts of two rapporteurs (Theo van Boven and Cherif Bassiouni),
the Commission of Human Rights agreed the “Basic Principles and Guidelines on
the Right to a Remedy and Reparation for Victims of Gross Violations of
49
Bottigliero, supra note 36 at 206.
50
Prosecutor v Akayesu, Case No. ICTR-96-4, Judgment (Sept. 2, 1998).
51
Heidy Rombouts, Victim Organisations and the Politics of Reparation: A Case-Study on Rwanda
(Antwerp: Intersentia, 2004) at 464-466 [Rombouts, 2004].
52
Naomi Roht-Arriaza, “Reparations Decisions and Dilemmas” (2004) 27 Hastings Int’l & Comp L
Rev 157 at 168.
53
Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9 (1998), Art 75.
10 Windsor Yearbook of Access to Justice 2012
International Human Rights and Serious Violations of International Humanitarian
Law” [BPG] at its April 2005 session.
54
The document takes a broad approach to remedy and reparations, incorporating
the obligations to prevent violations, investigate and prosecute violations, and
provide effective remedies to victims.
55
Remedies to victims include equal and
effective access to justice, adequate, effective and prompt reparations, and access
to relevant information concerning violations and reparations mechanisms.
56
The
numerous forms of reparations are well described in the BPG: restitution,
compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
57
This
is helpful in widening the scope of reparations beyond the common idea that
reparations and compensation are synonymous.
Restitution aims at restoring the victim to the original situation before the
violation occurred, and it includes return to one’s place of residence, restoration of
employment, return of property, and restoration of liberty, enjoyment of human
rights, identity, and citizenship. This affords the concept of restitution breadth
beyond the return of property. Compensation provides monetary and in-kind
payment for harm that can be economically assessed. Harm includes physical or
mental harm, lost opportunities (for employment and education), material damage,
harm to reputation and dignity, moral damage, and costs required for assistance
and medical and psychological services. Rehabilitation incorporates medical and
psychological care and legal and social services. Satisfaction includes cessation of
continuing violations, verification of facts and disclosure of truth, official
apologies, commemorations, and inclusion of accounts of the violations in
educational materials. The last category, guarantees of non-repetition, includes
measures aimed to prevent reoccurrence of rights violations such as measures to
ensure civilian control of the military, strengthen the judiciary’s independence,
and prevent social conflict.
E. Conclusion
This review of the international legal framework for reparations demonstrates
that the normative tide has been towards the recognition of an individual right to
reparations for victims of gross violations of human rights. The consensus blurs
around how that right should be realized. The classical rules on state responsibility
and the approach of international human rights treaties acknowledge the right to
reparation but permit it to be claimed only via domestic channels. More recent
developments in international human rights and criminal law recognize individual
standing at international law to claim reparations. The jurisprudence of the Inter-
American Court of Human Rights has recognized a right to reparation and made
orders against states for that right to be realized. Most recently, flanked by the new
Basic Principles and Guidelines, the establishment of the ICC’s Trust Fund for
Victims provides a clear indication of the international community’s recognition
of an individual victim’s right to reparation.
54
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights and Serious Violations of International Humanitarian
Law, UN Human Rights Committee, 56th meeting, chap. XI, E/CN.4/2005/L.10/Add.11 [BPG].
55
Ibid at art. 3.
56
Ibid at art. 11.
57
Ibid at arts. 15-23.
Vol. 30(1) Thinking Past Rights 11
IV. WOMEN’S VOICES ON REPARATIONS
A relatively clear understanding exists in international law and transitional
justice circles about the definition of reparations and its contours. The most
progressive position, though not universally accepted, is that an individual has a
right to reparations. The paradox is that this rights-based approach does not match
the approach to reparations among many activists. The following section outlines
how some women activists talk about reparations, in order to demonstrate the gap
between the dominant rights-based approach and activist discourses.
Every conflict is different, and the needs of survivors vary enormously within
conflict societies and from conflict to conflict. Women who live through conflict
are very different from one another and do not constitute a single group in reality.
Nonetheless, a comparative analysis of women’s attitudes about reparations in a
number of societies emerging from conflict reveals some interesting trends. These
trends are presented at a macro, generalized level that makes no attempt to reflect
the detailed political, historical, economic, and social contexts in which these
claims are articulated. The following analysis is based on a number of sources.
As part of its project on reparations, the International Center for Transitional
Justice [ICTJ] initiated a project on gender and reparations. The first part of the
study, produced through two years of on-the-ground case studies, centred on
empirical gender analyses of reparations programs in Guatemala, Peru, Rwanda,
Sierra Leone, South Africa, and Timor-Leste.
58
In parallel to this project, the Coalition on Women’s Human Rights in Conflict
Situations is engaged in a research action project with activists on gender and
reparations.
59
The Coalition conducted a study that included interviews with
activists in South Africa, Rwanda, Sierra Leone, Guatemala, Peru, Chile, and
Timor-Leste.
60
At an international meeting hosted by the Coalition and the Urgent
Action Fund-Kenya, women’s rights advocates and activists, as well as survivors
of sexual violence in situations of conflict, from Africa, Asia, Europe, Central,
North, and South America, issued the Nairobi Declaration on Women's and Girls'
Right to a Remedy and Reparation.
61
The Declaration was signed by the
organizations present at the meeting.
62
Many of the activists interviewed in the first
58
Ruth Rubio-Marin, What Happened to the Women: Gender and Reparations for Human Rights
Violations (New York: Social Science Research Council, 2006).
59
The author is a member of the Coalition and was present at the Nairobi Meeting.
60
Vahida Nainar, “Women’s Right to Reparation” (Paper delivered at the International Meeting on
Women’s Right to Reparation, Nairobi, March 2007) [unpublished].
61
“Nairobi Declaration on Women's and Girls' Right to a Remedy and Reparation,” adopted March
2007, online: Womens’ Rights Coalition <http://www.womensrightscoalition.org/ site/
reparation/signature_en.php>.
62
Signatories to the Declaration: Coalition for Women’s Human Rights in Conflict Situations;
Urgent Action Fund-Africa, Kenya; Rights & Democracy, Canada; Alianza de Mujeres Rurales
por la Vida, Tierra y Dignidad, Guatemala; ASADHO/Katanga - Association africaine de défense
des droits de l’Homme, section Katanga, Democratic Republic of Congo; Asociación Reflexión
de Inocentes Liberados, Peru; Association des femmes juristes, Burundi; CCJT - Coalition
congolaise pour la justice transitionnelle, Democratic Republic of Congo; CDA - Community
Development Centre, Sudan; CEDA - Community Extension Development Association, Sierra
Leone; CLADEM - Comité de América Latina y El Caribe para la Defensa de la Derechos de la
Mujer, Peru; ODEPU - Corporación de Promoción y Defensa de los Derechos del Pueblo, Chile;
Coordinadora Nacional de Mujeres Afectadas por la Violencia Política, Peru; Corporación
Humanas, Chile; Corporación para la Vida Mujeres que Crean, Colombia; Demus - Estudio para
12 Windsor Yearbook of Access to Justice 2012
phase of the Coalition’s project attended the conference held in Nairobi. The draft
of the civil society declaration on gender and reparations was developed from
analysis of the report’s interviews with activists. Through plenary and sub-
committee sessions, the participants extensively revised the draft to produce a
Declaration that represented the Conference’s views.
In the following section, findings from the Coalition’s background research
and the interventions from participants in the Nairobi meeting will be integrated
into a broader analysis that includes the ICTJ study. I then analyze the Nairobi
Declaration as one expression of women’s views on gender and reparations.
A. Thematic Analysis of Reparations Priorities
1. Broad Scope of Eligibility for Reparations
When provided the opportunity to talk about what they need from transitional
justice, it is common for women to articulate the needs of their families or the
harms experienced by members of their families. For example, women testifying
before the truth commissions in South Africa and Peru tended to downplay or omit
their harsh treatment and focus on what happened to their male relatives.
63
Thus, it
was useful that the definition of those eligible for reparations included relatives or
dependants of victims. A strength of the UNCC in Kuwait was its inclusive
approach to the definition of victims. For claims of loss by individuals, individual
victims included victims related to a primary victim, either as spouses, children, or
parents.
64
Compensation was available for death of a spouse, child, or parent
resulting from the invasion.
65
In lobbying around the creation of the International
Criminal Court, the Women’s Caucus for Gender Justice argued for an inclusive
definition of victim in reparations: “compensation should be made available to the
families of victims dependents, and others having a special relationship with
the direct victims, whether or not formally recognized at law in the national
system.”
66
The effect is that women’s voices have contributed to a broad definition
of the class of people eligible to benefit from reparations programs.
la defensa y los derechos de las mujeres, Peru; ESSAIM - Cadre de concertation et d’activités
pour la protection et la défense des droits des femmes à l’est de la République démocratique du
Congo, Democratic Republic of Congo; Feinstein International Center, Tufts University, USA;
FOKUPERS - East Timorese Women’s Communication Forum, Timor Leste; Grupo Suporta
Inan, Timor Leste; Instituto de Estudios Comparados en Ciencias Penales, Guatemala;
International Women’s Human Rights Law Clinic, CUNY Law School, USA; Khulumani
Support Group, South Africa; LDGL - Ligue des droits de l’Homme dans la région des Grands-
Lacs, Rwanda; Mamá Maquín, Guatemala; MARWOPNET - Mano River Women Peace
Network, Sierra Leone; PAIF - Programme d’appui aux initiatives féminines, Democratic
Republic of Congo; PCS - Consejería en Proyectos, Latin America; REDRESS, United Kingdom;
Ruta Pacifica de las Mujeres, Colombia; SEVOTA - Solidarité pour l’épanouissement des veuves
et des orphelins visant le travail et l’auto-promotion, Rwanda; SOFEPADI - Solidarité féminine
pour la paix et le développement intégral, Democratic Republic of Congo; Women’s Forum,
Sierra Leone; Women’s Research and Action Group, India.
63
Beth Goldblatt, “Evaluating the Gender Content of Reparations: Lessons from South Africa” in
Rubio-Marin, supra note 58, 48 at 55; Julie Guillerot, “Linking Gender and Reparations in Peru:
A Failed Opportunity” in Rubio-Marin, ibid at 146.
64
Judith G Gardam & Michelle J Jarvis, Women, Armed Conflict, and International Law (The
Hague: Kluwer Law International, 2001) at 234.
65
Ibid at 237.
66
Women’s Caucus for Gender Justice in the International Criminal Court, “Part III:
Recommendations and Commentary for the March 1998 PrepCom, Reparations” (18 Mar 1998),
online: Women’s Initiatives for Gender Justice <http://www.iccwomen.org/index.php.>.
Vol. 30(1) Thinking Past Rights 13
2. Defining Harm in a Gendered Way
As war is gendered, the definition of harms which are the basis for eligibility
has gendered effects. In South Africa, the Truth and Reconciliation Commission’s
[TRC] definition of victims was based on “harm as a result of a gross violation of
human rights or an act associated with political objectives for which amnesty has
been granted.”
67
This definition was criticized for its exclusion of the victims of
such apartheid policies as forced removals, pass laws, and residential segregation.
68
The focus on gross human rights violations and “political crimes” excluded the
structural social and economic violence which imperiled day-to-day subsistence
under apartheid.
69
As women have traditionally been responsible for subsistence
(food, care, and shelter), the exclusion of these harms rendered women’s
experiences of apartheid less visible. Even for events which fell under the
umbrella of the TRC, ideologies functioned to deny women’s experiences of the
conflict. For example, in one case, the TRC’s Amnesty Committee rejected the
notion that a sexual crime could be politically motivated, in effect denying that a
woman could have been raped just because she was from another political party.
70
The question of whether rape could be considered a “political” act was contentious
even within the feminist community.
71
Similarly, Chile’s decision to define victims
as those killed or “disappeared” excluded the significantly larger number of torture
survivors or those forced into exile.
72
In contrast, the UNCC’s approach to the definition of compensable harms
resulted in the recognition of women’s experiences during the invasion of Kuwait.
Being forced to flee was in itself recognized as leading to compensable harm, as
were injuries sustained in refugee camps.
73
This is an important advancement, as
women disproportionately figure in the populations forced to flee during conflict.
The UNCC also made important strides in recognizing sexual violence as a serious
personal injury, compensable on a par with aggravated assault and torture.
74
Mental anguish resulting from sexual assault and miscarriage, unwanted abortion,
or still-births following invasion were included as compensable harms, thus further
recognizing women’s experiences of the conflict.
3. Root Causes and Continuity of Violence
Participants at the Nairobi Meeting came to the emphatic conclusion that
returning victims to the point they were in before the conflict is not an
understanding of reparations that can work if one is concerned with a gender-
sensitive approach to reparations. Activists from South Africa, Darfur, Peru, Sierra
67
Lovell Fernandez, “Reparation for Human Rights Violations Committed by the Apartheid Regime
in South Africa” in Albrecht Randelzhofer & Christian Tomuschat, eds, State Responsibility and
the Individual: Reparation in Instances of Grave Violations of Human Rights (The Hague:
Martinus Nijhoff Publishers, 1999) 173 at 176.
68
Roht-Arriaza, supra note 52 at 178.
69
Pumla Gobodo-Madikizela, “Women’s Contributions to South Africa’s Truth and Reconciliation
Commission” (Boston: Women Waging Peace Policy Commission, 2005) at 14.
70
Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York:
Routledge, 2001) at 80.
71
Nesiah, supra note 29 at 27.
72
Roht-Arriaza, supra note 52 at 178.
73
Gardam & Jarvis, supra note 64 at 240.
74
Ibid at 238.
14 Windsor Yearbook of Access to Justice 2012
Leone, and Rwanda called attention to the discriminatory laws and practices which
denied women’s rights. For example, one Nairobi Meeting participant argued that
reparations decisions in Darfur must consider that women had no rights to the land
before the conflict. A similar concern was found by ICTJ’s researchers in
Guatemala: indigenous women’s organizations argued that the material restitution
component of reparations would not help women because they were denied rights
to own land before the conflict.
75
The conclusion that reparations cannot be about restitution to pre-conflict
conditions leads many women to articulate a theory of reparations that calls for
understanding and addressing the root causes of the conflict. This could be seen at
the Nairobi Meeting in the interventions of activists from South Africa, Burundi,
and Argentina.
In some cases, interrogating the root causes of conflict as part of the goals of
reparations leads women to draw connections between pre and post-conflict forms
and levels of violence against women. Activists in Peru and Argentina, for
example, argued at the Nairobi Meeting that there is continuity between violence
today and violence under the dictatorships. However, other studies have found that
activists are not drawing connections between gender violence in the conflict and
present-day violence. Though South Africa has endemic violence against women,
women’s organizations have not often linked past sexual crimes to current sexual
crimes.
76
A similar pattern was observed in Peru and Guatemala, as the feminist
organizations concerned with violence against women focused very little on
“political violence”, and human rights organizations ignored women’s experiences
of the conflict.
77
4. Compensation
Money helps to relieve some of the burdens caused by human rights violations,
and women survivors will often articulate monetary compensation as one element
of reparations. Participants from Rwanda and Peru in the Nairobi Declaration
meeting argued that compensation for economic losses should be included in
reparations programs, particularly as many women will have lost male
breadwinners or the means of making a living. Victims in Sierra Leone asked for
individual monetary compensation as one aspect of their understanding of
reparations.
78
Through interviews with women from civil society organizations in
Timor-Leste, researchers learned that one priority (among many) was some form
of material support for survivors of the conflict.
79
In South Africa, many of those
who gave testimony to the Truth and Reconciliation Commission were
disappointed to learn that it had no immediate power to help with day-to-day
75
Claudia Paz y Paz Bailey, “Guatemala: Gender and Reparations for Human Rights Violations” in
Rubio-Marin, supra note 58 at 110.
76
Goldblatt, supra note 63 at 74.
77
Guillerot, supra note 63 at 146; Paz y Paz Bailey, supra note 75 at 104.
78
Jamesina King, “Gender and Reparations in Sierra Leone: The Wounds of War Remain Open” in
Rubio-Marin, supra note 58 at 255.
79
Galuh Wandita, Karen Campbell-Nelson & Manuela Leong Pereira, “Learning to Engender
Reparations in Timor-Leste: Reaching Out to Female Victims” in Rubio-Marin, supra note 58 at
300.
Vol. 30(1) Thinking Past Rights 15
survival needs or with basic physical rehabilitation.
80
Those who did eventually
receive Urgent Interim Reparations awards from the South African government
felt that the amounts given were of no use to their pressing material survival
needs.
81
The award of a monetary compensation is not the only issue at stake, as
the ability to choose how to utilize that award is also a concern. In South Africa,
the money has helped to give women some status and independence.
82
In Rwanda,
Avega, the Association for Genocide Widows, advocated for monetary reparations
as this would allow survivors to choose how to spend their award.
83
The limitations of understanding reparations as purely monetary compensation
are exemplified by reparation efforts in Latin America. In Latin America,
monetary compensation is controversial because many regard these payments as
“blood money” intended to silence or deflect attention from larger issues of
impunity and recognition.
84
For example, in Argentina, the Mothers of Plaza de
Mayo split into two groups on whether to accept or reject government reparation
funds.
85
Similarly, the “comfort women” in Japan rejected the monetary
reparations offered by the Japanese government on the basis that it came from
private sources, and not from the government’s funds.
5. Dignity
A clear common message is the need to go beyond monetary compensation.
For example, the comfort women” rejected the Japanese government’s offer of
compensation, not because of the amount but because the government did not
acknowledge any responsibility. The six women (out of 500) who did accept the
funds emphasized that, despite their acceptance, no monetary repayment could
repair the harm they had suffered.
86
In contrast, most Asian-Americans detained by
the US government during World War II accepted a small sum ($20,000),
arguably inadequate to compensate for their financial and moral losses, because it
was offered with an official acknowledgement of responsibility and a government
apology.
87
In addition to the call for an acknowledgement of responsibility, victims have
stressed the importance of measures that bear public witness to the crimes
committed. For example, in South Africa, it was common for relatives to demand
a death certificate for someone disappeared by the regime or a tombstone for a
murdered relative. Information about the dead and disappeared and measures to
restore the dignity of those wrongly convicted are also common themes in
reparations debates in Argentina, according to a participant in the Nairobi
Meeting. Similarly, the comfort women” have demanded that a historical account
of what happened to them be included in school textbooks.
88
In Latin America,
80
Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass
Violence (Boston: Beacon Press, 1998) at 105 [Minow, 1998].
81
Goldblatt, supra note 63 at 66.
82
Ibid at 69.
83
Rombouts, 2004, supra note 51 at 427.
84
Roht-Arriaza, supra note 52 at 180.
85
Rombouts, 2004, supra note 51 at 63.
86
Minow, 1998, supra note 80 at 105.
87
Ibid at 100.
88
Ibid at 105.
16 Windsor Yearbook of Access to Justice 2012
survivors and relatives have called for public monuments to be built and named in
honour of the murdered and disappeared.
89
According to Nairobi Meeting activists
who work with victims of sexual violence in Rwanda and Sierra Leone, actions to
restore the dignity of sexual violence victims are a crucial component of
reparations. This theme also appears in ICTJ’s interviews with women from civil
society organizations.
90
6. Health Services
Victims articulate reparations claims around their physical and mental health
needs. Access to health services appears in the ICTJ’s case studies as a reparations
claim from women victims in South Africa,
91
Sierra Leone,
92
and Timor-Leste.
93
It
is a central concern among survivors of the genocide in Rwanda.
94
As parts of its
reparations program, the government of Rwanda implemented a form of
reparations through preferential access to health services.
95
68,000 medical cards
were distributed to rescapés,
96
permitting them access to medical services for non-
genocide and genocide-related issues. In practice, it has contributed to tensions
between classes of survivors in Rwanda. Many men and women testify that they
no longer dare to use their medical cards because they fear mistreatment and
stigma. Doctors and nurses, among others, question why these survivors deserve
free medical care, while everyone else has to pay. Although they are eligible for
free care, many survivors are instead choosing to pay.
97
At the Nairobi Meeting, women from Rwanda, Argentina, and Peru called for
mental and social counseling to help survivors recover from the conflict, either
89
Guillerot, supra note 63 at 147.
90
Wandita et al, supra note 79 at 300.
91
Goldblatt, supra note 63 at 69.
92
King, supra note 78 at 255.
93
Wandita et al, supra note 79 at 299.
94
Rombouts, 2006, supra note 24 at 224.
95
Negotiations on the establishment of government reparations programs have been on-going since
the genocide in Rwanda. There are two funds: the FARG (Fonds national pour l’assistance aux
victims les plus nécessiteuses du genocide et des massacres perpétrés au Rwanda) and the FIND
(Fonds d’indemnisation). The FARG provides social assistance to rescapés of the genocide, but it
does not provide compensation. The FARG has paid secondary school fees for students who
qualify as “needy rescapés”, helped to build housing, and provided free medical assistance. The
FARG has existed since 1998, while the FIND has been discussed but never established. The
FIND is meant to address claims for compensation, as well as extend reparations to a class of
beneficiaries beyond the needy rescapés currently included in the FARG fund. The social
assistance measures under the FARG will be incorporated into the FIND, which will also fund
commemoration activities. Rombouts, 2004, supra note 51 at 371-379.
96
The notion of rescapé is central to Rwandan understandings of eligibility for reparations, but it is
complex and multi-faceted. The first aspect of rescapé identity limits the notion of harm to the
fact of being pursued, hunted down, or persecuted. The second parameter broaches supposed
ethnic-neutrality: most acknowledge that both moderate Hutu and Tutsi were persecuted, and
therefore qualify as rescapés, although complexities arise with regard to inter-ethnic marriages.
However, victims of RPF crimes are denied rescapé status. The third parameter concerns the
belief that presence in the country during the 1994 events is fundamental to being a rescapé. In
the fourth parameter family ties, relations, and circumstances play a role in determining rescapé
status. This becomes particularly relevant for children and widows of inter-ethnic marriages.
Rombouts, 2004, supra note 51 at 201.
97
Rombouts, 2006, supra note 24 at 224.
Vol. 30(1) Thinking Past Rights 17
individually or in groups. This fits with a common theme in the ICTJ case studies.
ICTJ’s studies in Guatemala,
98
South Africa,
99
Peru,
100
and Sierra Leone
101
note that
victims called for psychological reparations measures as a form of reparation. The
design and implementation of these measures require careful thought to ensure
they respond to the needs of a diverse group of victims. Indigenous women’s
groups argued for psychosocial counseling in their communities, implemented
from the viewpoint of Mayan spirituality and based on respect for knowledge of
community elders, including women.
102
Gender norms influence the design and
delivery of counseling programs, and often it is the men who are hardest to reach.
Organizations in Guatemala setting up self-help groups found that it was relatively
easy to gather women to talk about their feelings, whereas men were much more
reluctant to participate.
103
This problem was also encountered in Rwanda.
104
7. Housing
Housing comes up as a common need among victims in the reconstruction
process after conflict. Ninety percent of the victims who gave testimony to the
South African Truth and Reconciliation Commission included housing in their
requests for reparations.
105
A subsequent study on how victims used their monetary
compensation awards showed that many used it for housing-related costs.
106
Women’s groups interviewed as part of the ICTJ’s study in Sierra Leone stressed
that housing was a common need of women.
107
The ICTJ Timor-Leste study
included interviews with a sample of 50 female victims across 11 districts. These
women listed adequate housing as a component of reparations.
108
As part of the
Rwandan government’s reparations efforts, a survey of victims’ needs was
conducted.
109
The survey found that 80,000 women and 53,000 men were without
shelter. In response, the government built 3000 houses and distributed the homes
(often only partially built) as part its FARG program to assist needy rescapés.
8. Education for Children
Victims and survivors have also looked to the future in pursuit of reparations
for the past. In a multi-country study of Latin American victims, many survivors
emphasized the need for education of the children of those killed, disappeared,
tortured, or imprisoned.
110
South African victims demanded that perpetrators pay
98
Paz y Paz Bailey, supra note 75 at 112.
99
Goldblatt, supra note 63 at 69.
100
Guillerot, supra note 63 at 148.
101
King, supra note 78 at 255.
102
Paz y Paz Bailey, supra note 75 at 113.
103
Ibid at 112.
104
Rombouts, 2006, supra note 24 at 209.
105
Goldblatt, supra note 63 at 59.
106
Ibid at 69.
107
King, supra note 78 at 255.
108
Wandita et al, supra note 79 at 299.
109
Rombouts, 2006, supra note 24 at 222.
110
Roht-Arriaza, supra note 52 at 180, citing a multi-country study conducted by a Chilean human
rights organization under the auspices of the Association for the Prevention of Torture.
18 Windsor Yearbook of Access to Justice 2012
for the education of victims’ children.
111
They also felt that they should be given
preferential access to government programs for their children’s education.
112
Women in Peru called on the government for increased support for children’s
education.
113
Discussions in women’s groups in Sierra Leone revealed that women
felt that the government had an obligation to provide free education to children
born as a result of war-time conflict.
114
In the ICTJ studies in Timor-Leste,
education for children came at the top of the list of priorities among women
victims, and many used the funds received through the Urgent Reparations
program to pay for children’s school fees.
115
In Rwanda, Ibuka, a leading victims’
organization, demanded that school fees for all rescapés be provided by the
government’s reparations program.
116
Some female victims have criticized the Rwandan government’s school fees
policy. Women whose children died cannot benefit, and they regret that the fund
does not provide any funding for adult education. Some women need their children
at home, to help look after them or other sick relatives, or to contribute to income-
generating activities. In principle, many women will agree that it is right to
educate the country’s children, but they feel that it drains the resources available to
them to survive.
117
9. Economic Measures
In the ICTJ research, a number of case studies point to victims’ calls for
economic development measures. It is interesting to note that this did not appear in
discussions at the Nairobi Meeting. In Timor-Leste, women victims included in
their definition of reparations a demand for the government to do something to
ensure fair prices for their agricultural products.
118
Funds disbursed by the
government in the form of urgent reparations were used by some of the
beneficiaries to launch income-generating activities.
119
The study in Peru
concluded that women mobilized as a way to attract the government’s attention to
their pressing needs brought about by the violence. Jobs figured high in that list of
needs among Peruvian women.
120
In meetings about reparations in Sierra Leone
with urban women, women called for micro-credit facilities and skills training for
victims.
121
Women in rural areas argued that agricultural equipment, transportation,
and marketing facilities should be included in the government’s reparations
efforts.
122
Women’s organizations felt that the government should rehabilitate
111
Ibid.
112
Goldblatt, supra note 63 at 71.
113
Guillerot, supra note 63 at 147.
114
King, supra note 78 at 255.
115
Wandita et al, supra note 79 at 299-304.
116
Rombouts, 2004, supra note 51 at 442.
117
Rombouts, 2006, supra note 254 at 223.
118
Wandita et al, supra note 79 at 299.
119
Ibid at 304.
120
Guillerot, supra note 63 at 147.
121
King, supra note 78 at 255.
122
Ibid.
Vol. 30(1) Thinking Past Rights 19
markets to make them accessible to women with disabilities, a concern for the
many women who survived amputations in the war.
123
10. Women’s Rights Reforms
Attention to pre-existing gender discrimination compels many women to push
for reforms to laws, practices, and customs that discriminate against women.
Nairobi Meeting participants from Rwanda, Sierra Leone, and Burundi argued that
reforming laws on sexual violence and raising awareness on women’s rights
should be understood as part of government reparations programs. Activists from
Peru argued that denial of reproductive rights, like rights to abortion, caused some
of the conflict violations, as rapes resulted in forced pregnancies. This injustice
continues post-conflict and requires legislative change as part of dealing with the
conflict’s legacy. Reforms to laws restricting women’s rights to own or inherit
land were singled out by activists from Darfur. Calls for legal reform also appear
in the ICTJ’s research, particularly in the Sierra Leone case study, where women
advocated reform to laws on domestic violence and inheritance.
124
11. Ending Impunity
For many activists, reparations include a broad understanding of justice. At the
Nairobi Meeting, activists from Peru, Rwanda, and Argentina stressed that
reparations is incomplete if perpetrators of sexual violence go unpunished.
Findings from the ICTJ’s study in Timor-Leste echo this demand for justice.
125
12. Political Participation of Women in Post-conflict Government
A further theme found among women in various contexts is an emphasis on
political participation of women. At one level, women argue that they must be
included in decisions about how reparations programs and policies are designed
and implemented. On another level, women are arguing that they must participate
in the broader agenda of the post-conflict reconstruction process. They see laws
and customs that inhibit women’s active participation in public life as part of the
transitional justice project and measures to improve women’s participation in
politics as part of reparations. Activists from Chile, Darfur, Sierra Leone at the
Nairobi Meeting called for increased participation of women in the post-conflict
politics. Calls for women’s participation in transitional justice decision-making
signal the efforts of women activists to position women as equal citizens, thus
challenging post-conflict reconstruction of patriarchy.
B. Nairobi Declaration on Women’s and Girls’ Right to a Remedy and
Reparations
With its ambitious scope and improbable sentence constructions, the Nairobi
Declaration carries the hallmarks of a document written by committee in the
excitement of an international feminist gathering. It provides an invaluable insight
into the concerns of activists working for a feminist approach to reparations.
123
Ibid at 260.
124
Ibid at 255.
125
Wandita et al, supra note 79 at 299.
20 Windsor Yearbook of Access to Justice 2012
The Nairobi Declaration borrows from and pushes beyond international
frameworks on the right to reparation.
126
The Declaration uses many of the terms
found in the Basic Principles and Guidelines (restitution, compensation, and re-
integration), but the context, tone, and spirit of the Declaration offer a unique civil
society perspective. The Declaration begins by adopting a wide definition of harm,
as the basis for a claim to reparation. It includes harm to physical integrity,
psychological and spiritual well-being, economic security, social status, and the
social fabric of the community. Gender identity is understood to be a
construction.
127
The Nairobi Declaration references age and customary and
religious law as factors that must be analyzed in understanding diverse needs for
reparations.
The Declaration views women as having an important public role in rebuilding
and maintaining their families, communities, and societies. This connects to the
Declaration’s message that the design, implementation, and evaluation of
reparations programs must be participatory. Participation of women and civil
society organizations in the transitional justice process is essential according to the
drafters of the Declaration.
128
Though the decision-making process should be
participatory, the Declaration asserts that the state bears the primary responsibility
for reparations. Governments should not undertake development activities instead
of reparation, as women and girls risk being excluded from the opportunities
provided by development.
The understanding of reparations driving the Declaration is broad. Reparations
should include: 1) physical and mental health services and other services for
rehabilitation; 2) provisions for compensation and restitution; 3) justice initiatives
including ending impunity for sexual violence crimes; 4) programs aimed at
restoring victims' dignity using symbolic tools like public apologies; 5) truth
telling, including the acknowledgement of women's suffering; 6) educational
initiatives, including raising awareness on women's rights and gender sensitivity;
and 7) the reform of discriminatory laws and customs against women.
129
The Declaration has a broad understanding of reparations because the
Declaration contains a theory of gender-based violence and a prescription for post-
conflict social transformation. It argues that gender-based violence in conflict is
the result of inequalities between women and men, girls and boys that predate the
conflict. These inequalities structure violations during the conflict and are
aggravated in the post-conflict period. Because the origins of violations of rights
predate the conflict, reparations must aim to transform these socio-cultural
injustices and must, by definition, not attempt to restore the victims to their pre-
conflict conditions. The Declaration thus calls for an understanding of reparations
that is driven by the goal of social transformation.
126
Valérie Couillard, “The Nairobi Declaration: Redefining Reparations for Women Victims of
Sexual Violence” (2007) 1 International Journal of Transitional Justice 444 at 445.
127
Ibid at 449.
128
Ibid at 450.
129
Anne Saris & Katherine Lofts “Reparation Programmes: A Gendered Perspective” in Carla
Ferstman et al, eds, Reparations for Victims of Genocide, War Crimes and Crimes against
Humanity (The Hague: Brill, 2008) 79 at 93.
Vol. 30(1) Thinking Past Rights 21
C. Conclusion
Listening to the stories, expectations, and demands of victims compels us to
recognize that victims have a very broad understanding of the idea of reparations.
It is clearly much more than an individual right to reparations, as understood in
international law. According to the research on women’s understanding of
reparations, it includes the following elements:
Broad scope of eligibility for reparations
Defining harm in a gendered way
Compensation
Dignity
Health services
Housing
Education for children
Economic measures
Ending impunity
Understanding the root causes of conflict and
acknowledging the continuity of gender-based violence
Women’s rights reforms
Political participation of women in post-conflict
government
The challenge, then, is to explain why there seems to be such a huge gulf between
the normative framework in international law, human rights law, and criminal law
and the understanding of reparations developed at the ground-level. The gulf, I
argue, is caused by a different normative approach to the meaning of justice. In the
next sections, I offer theoretical models for reparations, based on theories of
justice, and then elaborate a feminist critique of these models.
V. THREE THEORETICAL MODELS OF JUSTICE
The aim of reparations is to achieve justice for victims. But defining justice
and the means to achieve it is a much deeper conceptual and practical challenge.
Based on work by Nancy Fraser, the following section proposes three models for
defining justice.
130
Each model carries with it a conception of identity and a
remedy to injustice.
According to some schools of thought, justice can be defined as “a standard
whereby the distributive aspects of the basic structures of society are to be
assessed.”
131
If justice is about distribution, then injustice is about imperfect
distribution. The “stuff” of distributive justice is material resources, rights and
liberties, and opportunities. Other thinkers argue that just distribution should
include attention to culture and community. These opposing views all depart from
the “justice as distribution” paradigm the debate is a question about what is
130
Nancy Fraser, Justice Interruptus: Critical Reflections on the “Post-socialist” Condition (New
York: Routledge, 1997); For an application of Nancy Fraser’s framework to transitional justice
prosecutions, see Franke, supra note 22.
131
John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971) at 9.
22 Windsor Yearbook of Access to Justice 2012
distributed and how much.
132
Another possibility is to step out of the “justice as
distribution” paradigm to define “justice as [a] process” that concentrates on
action, decisions about action, and provision of the means to develop and exercise
capacities.
133
A. Justice as Distribution of the Material
In defining justice as distribution, liberal and egalitarian thinkers emphasize
distribution to correct socio-economic inequality. This includes not only material
resources, but also rights, liberties, and opportunities, which have been constructed
as material things.
134
The liberal paradigm conceives of a right as something one
actually has, in a proprietary sense, rather than as creating the conditions for
relationships with others.
135
This line of thought is concerned with socio-economic
views of injustice, whereby the solution is egalitarian redistribution.
136
The “Material distributive justice” strand has the abstract, atomized, neutral,
liberal individual at its centre. The good life can be realized by fulfilling the needs
of this “empty vessel” individual. Classical liberal thought imagines a pre-
constituted self: the “self stands at the centre of the world, fully in control of
himself, clear about his motives and in possession of his rights.”
137
Egalitarian
liberal theory’s response to injustice is redistribution of the material, or material-
like, goods of society in a more equitable fashion, through the creation and
protection of the rights of the individual.
B. Justice as Distribution of the Symbolic
Another school of thought argues that injustice can be cultural and symbolic
and can arise from domination, non-recognition, and disrespect.
138
The cultural
group or community appears as a key site in which justice and injustice are meted
out. The individual cannot be understood abstracted from his cultural setting,
because culture is vital to making autonomous individual choices.
139
Identity is
thus not pre-constituted but shaped by cultural interaction and relationships. The
remedy for such injustice is to develop and protect the rights of cultural groups.
For the communitarian, interested in cultural distributory justice, the remedy is to
enhance recognition.
132
Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press,
1990) at 16.
133
Ibid.
134
Ibid at 25.
135
Costas Douzinas & Adam Gearey, Critical Jurisprudence: the Political Philosophy of Justice
(Oxford: Hart Publishing, 2005) at 183.
136
Martha Nussbaum has contributed a considerably more complex theory of egalitarian liberalism
that addresses many of the feminist critiques of the traditional model I present here. See Martha
Nussbaum, Sex and Social Justice (New York: Oxford University Press, 1999) and Martha
Nussbaum, Women and Human Development: the Capabilities Approach (Cambridge: Cambridge
University Press, 2000).
137
Douzinas & Gearey, supra note 135 at 181.
138
Charles Taylor, Multiculturalism and “The Politics of Recognition” (Princeton: Princeton
University Press, 1992) at 25.
139
Will Kymlicka, Liberalism, Community and Culture (Oxford: Oxford University Press, 1989) at
165.
Vol. 30(1) Thinking Past Rights 23
C. Justice as Process
In theories which define justice as a process, attention is placed on the
institutional context and the structures, practices, rules, and norms that guide
decisions and the language and symbols that drive them.
140
From this paradigm,
justice cannot be achieved by distributing things or symbols, but rather by
encouraging a democratic process which is participatory and empowering. In this
model, a vision of the self emerges that is neither pre-constituted nor culturally
determined. The self is dynamic, responsive, and contingent. For Young, “the self
is a product of social processes, not their origin”
141
and “identity is constituted
relationally, through involvement with and incorporation of significant others
and integration into communities.”
142
The individual does not precede the group,
because “people’s identities are partly constructed by their group affinities.”
143
Groups are not things in the classical liberal sense “they are real not as
substances, but as forms of social relations.”
144
The individual and group need to
be theorized together, because individuals identify with a group as a result of their
similar experiences or ways of life. Thus, groups and individuals are not inherently
or essentially bound together they come together through social relations.
Others who have rejected the pre-constituted or culturally-determined
conceptions of identity have gone even further. Identity and the individual exist at
the moments of interaction with others: “Identity…is an ongoing dialogue with
others which keeps changing my image for others and re-drawing my self-
image.”
145
The idea that gender identity is performed
146
and that the production of
ethnicity is a tournament with individual performance measured in relation to
larger frames
147
supports this dynamic, deconstructed vision of the self in relation
to others. Defining justice as a process leads to conceptions of rights not as things
or tools, but as “communally recognized rituals for securing attention in a
continuing struggle over boundaries between people.”
148
An attention to process makes it possible to see liberal rights and
communitarian relationships as co-existing. There is no need for an either/or
choice between redistribution and recognition.
149
The redistribution view rests on
the abstract, universal individual as the unit underpinning redistribution; the
cultural recognition view celebrates the differences among individuals which must
be better affirmed. Yet, people experience injustice in both cultural and material
(economic) terms, so claims for redistribution and recognition co-exist, rather than
being mutually exclusive. The opposition between justice as socio-economic or
140
Young, supra note 132 at 22.
141
Ibid at 45.
142
Ibid.
143
Ibid at 9.
144
Ibid at 44.
145
Douzinas & Gearey, supra note 135 at 181.
146
Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge,
1999).
147
Vigdis Broch-Due, “Violence and Belonging: Analytical Reflections” in Vigdis Broch-Due, ed,
Violence and Belonging: The Quest for Identity in Post-colonial Africa (London: Routledge,
2005) 11.
148
Martha Minow, Making All the Difference (Ithaca: Cornell University Press, 1990) at 383.
149
Fraser, supra note 130 at 4.
24 Windsor Yearbook of Access to Justice 2012
cultural rests on a false opposition, because both understandings of justice rest on
the “right to have rights.”
150
Classical liberalism is built around the individual as
holder of legal personality. Legal personality brings both formal recognition of the
material (e.g. property rights) and abstract recognition of the symbolic (e.g. honour
and respect).
151
When groups clamour to be recognized as rights-bearers, they
assert similarity between their group and those who currently enjoy rights.
152
Fraser shows that neither theory of justice as fundamentally about socio-
economic or cultural injustice emphasizes transformation.
153
There is no effort to
“restructure the underlying generative framework.”
154
The politics of identity has
focused on affirmation, which “corrects the inequitable social outcomes without
disturbing the underlying framework that generates them.”
155
Policies aimed at
addressing socio-economic injustice frequently seek to correct the inequity
produced by existing political and economic structures without changing the
underlying causes. It is possible to define justice and the remedies to injustice in
such a way that both the redistribution and recognition challenges are included.
156
By focusing on transformation, the processes that produce injustice, rather than
their effects, can be analyzed and tackled.
157
Young argues that the remedy to
injustice can be found in processes that “support the development and exercise of
people’s capacities and their ability to express themselves and be heard.”
158
The next section applies these different theoretical approaches to justice to a
theoretical framework on reparations.
VI. THREE THEORETICAL MODELS OF REPARATIONS
The following section suggests three models of reparations: reparations as
rights, as symbols, or as processes. These differing conceptions in turn connote
differences in the nature and goals of reparations as an element in the post-conflict
response to victims and survivors. They can be mapped on to the three theoretical
models of justice outlined in the preceding section.
A. Reparations as Rights
The assertion that a breach of a victim’s rights generates a right to
compensation is the paradigmatic example of reparations as a right.
159
This
formulation is the organizing principle in international law’s understanding of
reparation and is based in a juridical understanding of the appropriate actions in
the wake of breaches of law. Compensation may be aimed at actually repairing the
150
Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace, 1973) at 296.
151
Douzinas & Gearey, supra note 135 at 184-186.
152
Ibid at 191.
153
Fraser, supra note 130 at 23.
154
Ibid.
155
Ibid.
156
Ibid at 31.
157
Ibid at 33.
158
Young, supra note 132 at 38.
159
Pablo de Greiff, “The Role of Reparations in Transitions to Democracy” (Paper delivered at the
Justice and the World Economy: Achieving Global Justice Seminar Series, May 2004)
[unpublished].
Vol. 30(1) Thinking Past Rights 25
harm, or making an effort in that direction. Reparation can be achieved through
restitution of things (like property) or rights (citizenship rights or rights to legal
personality). The rights-based architecture of reparations explains why the
restoration of individual property rights was the only form of reparations
permissible under the ICTY and ICTR statutes.
Rights-based conceptions of reparation can be understood as part of the liberal
paradigm of “Justice as Distribution”, with the injustice being repaired understood
in material and socio-economic terms. Rights-based understandings of reparations
dominate when justice is understood in material distributive terms. The effect is
that this kind of reparations emphasizes better distribution through compensation,
with the abstract, liberal individual as the core unit of reparations.
Reparations sometimes include giving recognized victims preferential access to
services and public goods. Turning health care or schooling into a good which can
be preferentially allocated is another example of reparations framed as rights. The
right to reparations operates to transform a service into a material, thing-like
entitlement. Pushing victims to “the head of the line” might help to address the
substantive problems that victims continue to endure as a result of the violations
committed against them for example, their increased need for health care or
public transportation due to disabilities. Preferential access, in the form of
subsidies for secondary school fees and medical cards for access to hospitals, is
one element of the Rwandan government’s current approach to reparations.
160
The reality is that it is not possible to provide full reparations to any victim of
massive human rights crimes because “no market measures exist for the value of
living an ordinary life, without nightmares.”
161
As it is impossible to repair the
harms caused by massive human rights violations, perhaps reparations understood
through the framework of “Justice as Distribution of the Material” is only part of
the picture.
B. Reparations as Symbol
Reparations could instead be thought of as a symbolic act. Symbolic forms of
reparations include burials of the dead or disappeared, commemorations, and the
re-naming of public monuments after victims. Here, social, moral, psychological,
and religious meanings are at the heart of reparations, as opposed to transfers of
material things which could never achieve anything close to a return to the pre-
conflict situation.
162
Emphasizing the symbolic nature of reparations does not
imply rejecting monetary compensation. Rather, in view of the inherent limits of
compensation, any material transfers become symbolic objects around which
wrongs are acknowledged.
163
In this understanding, programs that give survivors
preferential access to services may be a way of honouring the debt that society
owes them.
164
Understandings of reparations which stress their symbolic rather than rights-
based nature lead to aims related to constructing meaning in the public sphere.
160
Rombouts, 2004, supra note 51.
161
Minow, 1998, supra note 80 at 104.
162
Ibid at 104-107.
163
Christopher Kutz “Justice in Reparations: The Cost of Memory and the Value of Talk” (2004)
32:3 Philosophy & Public Affairs 277 at 279.
164
Roht-Arriaza, supra note 52 at 198-99.
26 Windsor Yearbook of Access to Justice 2012
Reparations work individually to restore the honour of victims.
165
For victims of
sexual violence and torture, the restoration of dignity may be the most essential
element of rehabilitation, both individually and as members of society.
166
They also
function collectively, beyond repairing individual victims or groups of victims, as
they signal that a line has been drawn between past and present.
167
Reparations as
symbol look for an acknowledgement of responsibility and apology by the
wrongdoer, frequently the state. Acknowledgement and apology have a symbolic
reparatory effect for the individual and society because they help to reflect and
reconstitute a moral community.
168
Understanding reparations as a symbol thus speaks to a more communitarian
approach to justice, which regards injustice as caused by mistakes of recognition.
The unit to be repaired is not only the individual, but the individual as part of her
society. In this understanding, both individuals and collectivities have rights to
reparation.
C. Reparations as Process
In characterizing reparations as a process, emphasis is placed on the role of
reparations in the complex transition out of a period of human rights violations, for
individuals and for society. Reparations programs can be defined as administrative
processes, established by statutes which define their mandate, jurisdiction, modes
of working, and accountability and decision-making structures.
169
As a process,
reparations are backward-looking, as they aim to repair the violations of victims’
rights, and forward-looking as they seek to advance the purposes of peace and
reconciliation and embed the protection of such rights in the future.
170
In a process-
oriented definition of reparations, a number of broader aims, such as reconciliation
and development, may be possible goals.
Process-centered understandings can emphasize the role of reparations in
forging a path towards reconciliation. Reparatory measures, like cash
compensation to victims and public acts of commemoration, facilitate
reconciliation by recognizing the victim’s humanity and signaling the society’s
intention to transform itself. For example, the belief in the South African Truth
and Reconciliation Commission’s potential for reconciliation lay in the idea that
the process itself of truth-telling and acknowledgement would build the
foundations for a new nation.
171
165
Nancy L. Rosenblum, “Justice and the Experience of Injustice” in Martha Minow, ed, Breaking
the Cycles of Hatred: Memory, Law, and Repair (Princeton: Princeton University Press, 2002) 75
at 98-99.
166
Judith L. Herman, “Peace on Earth Begins at Home: Reflections from the Women’s Liberation
Movement” in Minow, supra note 165 at 195.
167
Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, 2000) at 127.
168
Minow, 1998, supra note 80 at 114.
169
Jaime E. Malamud-Goti & Lucas Sebastín Grosman, “Reparations and Civil Litigation:
Compensation for Human Rights Violations in Transitional Democracies” in De Greiff, 2006,
supra note 32 at 540.
170
Teitel, supra note 167 at 127.
171
Brandon Hamber & Richard Wilson, “Symbolic Closure through Memory, Reparation, and
Revenge in Post-conflict societies” (Paper delivered at the Traumatic Stress in South Africa
Conference, January 1999) [unpublished].
Vol. 30(1) Thinking Past Rights 27
Process-based understandings of reparations can lead to assertions that
reparations should be understood as tools to promote social and economic
development. The aims of reparations become integrated into the process of social
transformation following a period of conflict. Victims’ rights to reparations and
their claims are recognized to the extent they are compatible with the
government’s plans for social, political, and economic development.
172
These process-based understandings of reparations contrast to the other models
based on Justice as Distribution. Rights-based and symbolic understandings of
reparations see the realization of rights and symbols as tangible outcomes which
emerge at a definable post-conflict moment. They see the “reparatory transaction”
with a clear start and endpoint as the culmination of a successful reparations
program. In understanding reparations as a process, the rights and symbols of
reparations are folded into a broader idea of reparations that is defined by the
process, rather than the individual component parts. Process-based understandings
of reparations incorporate rights, symbols, and social measures like rehabilitation
and development. But rather than “being reparations”, these are seen as the
building blocks of a process of transition which is specific to each post-conflict
context, dynamic, contingent, open-ended, and participatory.
The following chart summarizes these three understandings of reparations in
the context of different theories of justice.
Definition of Justice
Justice as Distribution
Justice as Process
Core to Justice
Material / Socio-
economic
Culture
Processes, structures,
institutions
Identity, Self,
Community
Pre-existing, abstract,
universal individual
Culturally-determined,
groups need rights
Dynamic, responsive,
contingent, relational
Law’s Role
Rights for individuals
Rights for groups
Discursive site, plural
normativity
Remedy
Better redistribution
Better recognition
Better democratic
process, participation,
empowerment
Reparations are …
Rights
Symbols
Processes
Repair through …
Respect for legal
rights to property and
personality (e.g.
compensation, equal
citizenship)
Restoring honour and
bearing witness
Inclusive, participatory,
and democratic
processes that see
transition as both
forward & backward-
looking
VII. TOWARDS FEMINIST THEORIES OF REPARATIONS
It is important to analyze what problems of injustice reparations are hoping to
solve because the answers to these questions affect design decisions taken in
establishing reparations programs. Furthermore, because there is relatively little
172
Teitel, supra note 167 at 147.
28 Windsor Yearbook of Access to Justice 2012
theorizing about the reasons that reparations program are pursued, implied
assumptions and norms may affect decision-making. The power of international
institutions and processes may mean that their normative frames are preferred over
activist discourses: “The structural underpinnings of conflict may be intentionally
or inadvertently omitted from the transitional justice account through the adoption
of the dominant scripts.”
173
As transitional justice has tended to be framed in ways
which reflect male experiences of war, interrogating the hidden normative
frameworks in understandings of reparations is important to developing a feminist
approach. In the following section, I explore feminist concerns with understanding
reparations as rights or symbols. I conclude by arguing that a feminist theory of
reparations should understand reparations as a process.
A. Reparations as Rights: The Dominant Paradigm
The Reparations as Rights model dominates most contemporary practice and
discourse on reparations. In international law, reparations has been clearly defined
in rights-based terms. Originally an inter-state remedy, the right to reparation is
now protected for individual victims through human rights law and international
criminal law. Reparations are individual rights, and there is reluctance to wade
into the terrain of collective rights, as shown by the curtailment and eventual
abandonment of the ICTR’s programs to provide housing and access to medicines
to some victims, survivors, and witnesses of the genocide in Rwanda. The new
procedures established in the International Criminal Court for reparations may be
the first sign of a retreat from a narrow, rights-based conception of reparations.
Among activists and commentators, the predominance of the “Reparations as
Right” model can also be seen. In a book based on case studies and thematic
analyses, De Greiff of the International Center for Transitional Justice posits that
reparations have three inter-linked goals: Recognition, Civic Trust, and
Solidarity.
174
The hallmark of a constitutional democracy is the ability to recognize
one another not only as individuals but as rights-bearing citizens,
175
and reparations
foster the recognition of citizenship based on equal rights. By Civic Trust, De
Greiff refers to the trust among members of the same political community that
both engenders and reinforces expectations about norms and codes of conduct. As
this trust is eroded during periods of conflict, reparations must pursue the goal of
rebuilding trust in others and trust in public institutions. Reparations must also
pursue Solidarity, or the empathy to imagine being in the place of others. As
policy choices which demonstrate the concern of the traditionally more
advantaged for the interests and welfare of the disadvantaged, reparations
programs can help to form a new social contract in which the dignity and interests
of the marginalized are more fully recognized.
176
Although using terms like “Recognition” and “Solidarity” to describe the goal
of reparations, de Greiff departs from an understanding of reparations as rights.
173
Lorna McGregor, “International Law as a 'Tiered Process': Transitional Justice at the Local,
National and International Level” in Kieran McEvoy & Lorna McGregor, eds, Transitional
Justice from Below: Grassroots Activism and the Struggle for Change (Oxford: Hart Publishing,
2008) at 59.
174
De Greiff, 2006, supra note 32 at 459.
175
Ibid at 460.
176
Ibid at 464.
Vol. 30(1) Thinking Past Rights 29
The claim for Recognition as an equal citizen is not intended to be a cultural or
symbolic process to acknowledge the specific needs of marginalized social groups.
Instead, such a call for recognition is consistent with the classical liberal emphasis
on the individual as a rights-bearer and justice as formal respect of individual
rights by the state and society. The goal of Solidarity is an argument for greater
equality and respect among citizens, with reparations as a tool to demonstrate this
equality, in part through a distribution of tangible (like monetary compensation)
and intangible (like full citizenship) goods from the advantaged to the
disadvantaged. The concern for rebuilding civic trust is premised on a notion of
citizens interacting in the public sphere as neutral and inter-changeable
individuals, rather than as socially-situated members of a range of social, cultural,
and political communities.
B. Problems with Reparations as a Right
There are problems with defining reparations solely as a right. First, the
Reparations as a Right”’ model implies that justice is to be achieved through re-
distribution of the material (including property and legal rights). In the idea that
reparations are the recognition of individual rights over communitarian interests,
177
a right is used to select those most eligible for reparation from among all those
harmed. Thus, the right shifts the focus from harm to (all) victims to a recognition
of (a few) individuals’ rights to bodily and property rights. With the instrument of
rights, the liberal conception frames and then sidesteps distributive justice
questions.
Framed as rights, then, the quest for reparations should not be mistaken as a
project to transform the distribution of wealth and power in a post-conflict society.
Indeed, Torpey argues that reparations is part of the “‘juridification’ of politics.”
178
In this regard, de Greiff is correct to caution against a narrow, legal approach to
reparations decisions, calling instead for a fundamentally political approach.
179
While rights-based conceptions of reparations do consider public and societal
acknowledgement and respect for victims, the resulting remedies, such as
compensation or restitution, repair the individual’s private sphere interests their
patrimony. Led by this normative framework, the policy decision to focus on
material restitution serves to exclude women and other marginalized groups from
reparations, as very often they lacked assets before the conflict. It can continue to
disadvantage them if post-conflict laws maintain that women do not have rights to
own land.
180
The focus on individual harm is a weakness of individual reparations measures
because it prevents a comprehensive picture of the nature and extent of the period
of human rights violations.
181
Incorporating the restoration or recognition of legal
personality helps to correct the narrow focus on patrimonial interests, but it does
not necessarily help to broaden the reparatory transaction beyond the individual
177
Teitel, supra note 167 at 133.
178
John Torpey, “Reparations Politics in the 21st Century” (2000-2003) Third World Legal Stud 43
at 61, 62.
179
De Greiff, 2006, supra note 32 at 465.
180
Ruth Rubio-Marin, “The Gender of Reparations: Setting the Agenda” in Rubio-Marin, supra note
61 at 33.
181
De Greiff, 2006, supra note 32.
30 Windsor Yearbook of Access to Justice 2012
victim/citizen and state. This narrowing has an exclusionary effect when
considering the aftermath of conflict from a gendered perspective. Women tend to
be victims of conflict-related violations which are dispersed through a community,
such as forced displacement, economic insecurity, starvation, and increased care-
giving responsibilities due to breakdown of social services.
The existing architecture of reparations is thus built on a liberal framework of
individual rights and an understanding of justice based on material distribution.
This maps onto an understanding of conflict as intra-male public violence that
does not reflect women’s experiences.
182
A gendered understanding of reparations
must push beyond an understanding of harm built on civil and political rights
violations to incorporate economic conditions, structural violence, and pre-existing
inequality and discrimination.
183
Efforts to engender reparations processes
challenge this architecture by expanding the definition of harms. Sexual violence
is an endemic feature of conflict, but an exclusive focus on rape in wartime risks
sexualizing women.
184
According to a South African critic, “gender justice can
only be furthered if there is a focus not just on the crime [of rape] but its context,
motivation, and location within a continuum of violence.”
185
Expanding the
definition of harm beyond the male-centred, political violence norm would need to
include elements like forced domestic labor, women’s increased caretaking
responsibilities, and forced displacement. Reparations would need to address
economic, social, and cultural harms in order to fully address women’s
experiences of conflict.
186
Reparations programs that include preferential access to education, housing,
and health care can help to address the narrow focus on compensation and harm to
civil and political rights, as these programs help to repair non-patrimonial
interests. Nevertheless, they remain within a rights-based understanding of
reparations. Individuals must be identified as eligible for the programs, often
through a special card or status. For them to feel that this preferential access
constitutes reparations, access must be regarded as an entitlement based on their
status as victim. Access to a service thus acquires the characteristic of a right
associated to their personhood.
There are some pitfalls to delivering reparations through preferential access to
services. The program might fail to establish a connection between the
redistributive program and the acknowledgement of responsibility by the state or
perpetrator. Preferential access to services is not of much use if the victim has no
need of the services. When there is little overall service provision or when many
victims have a right to such measures, being granted preferential access may mean
182
Fionnuala Ní Aoláin & Eilish Rooney, “Underenforcement and Intersectionality: Gendered
Aspects of Transition for Women” (2007) 1 International Journal of Transitional Justice 338 at
343.
183
Ruth Rubio-Marín and Pablo de Greiff, “Women and Reparations” (2007) 1 International Journal
of Transitional Justice 318 at 326.
184
Ibid.
185
Valji, supra note 21 at 11.
186
Daniel Aguirre & Irene Pietropaoli, “Gender Equality, Development and Transitional Justice: The
Case of Nepal” (2008) 2 International Journal of Transitional Justice 356 at 358; Makau W.
Mutua, “Transitional Justice in Sexual and Gender-Based Violence” (July 17, 2008). Buffalo
Legal Studies Research Paper No. 2008-18 online: SSRN <http://papers.ssrn.com/sol3/papers.c-
fm?abstract_id=1162240> at 2.
Vol. 30(1) Thinking Past Rights 31
little in practice. Affirmative action may provoke resentment among others who
feel they have just as much right to the public good being “granted” by the
government in this preferential manner.
The individual at the centre of the reparatory effort in a rights-based
understanding is thought of in abstract and neutral terms. Feminist and
communitarian critics have shown that liberalism has an impoverished
understanding of the individual, disembodied from the social context that forms
her. Applying this analysis to understanding reparations suggests that positioning a
gender-neutral citizen at the heart of reparations will obscure the social factors
which produce identity and the structural inequalities which position individuals in
communities.
187
Looking at preferential access forms of reparations reveals some
of the resulting problems of the liberal notion of identity. If women are the
primary beneficiaries of these forms of reparations, they may contribute to
stereotypical views of women as “passive recipients of assistance measures rather
than active citizens who require recognition and compensation for the fact that
their rights have been violated.”
188
In societies where unequal or preferential access
to state services were characteristics of colonial or oppressive rule, disparities in
access to services, as a form of reparation, might sow the seeds of further conflict,
instead of encouraging reconciliation.
189
Furthermore, these programs might easily
overlook that, given unequal starting points in society, women and men are
unlikely to get the same benefits from the same program.
190
The existing
infrastructure upon which preferential access programs are based may contain pre-
existing gender biases.
This problem is part of the broader feminist critique of the Reparations as
Rights model: it is impossible to talk of “repair” and “restitution” when the pre-
conflict situation was marked by inequality based on gender, ethnicity, class, and
other social markers. A feminist approach cannot be a search for social stability or
a return to an old way of life. As Saito asks:
as we struggle for compensation, for reparations and for the
reconstruction of societies, are [we] struggling in ways that
support accommodation and reconciliation with wrong, or … are
[we] honouring resistance to wrong and participating in the
dismantling of broader structures of oppression.
191
Echoing the voices of women activists, feminist critics have concluded that
reparations cannot produce justice by repairing to a pre-existing condition of
injustice.
192
According to Louise Arbour, then High Commissioner for Human
187
Colleen Duggan, Claudia Paz y Paz Bailey & Julie Guillerot “Reparations for Sexual and
Reproductive Violence: Prospects for Achieving Gender Justice in Guatemala and Peru” (2008) 2
International Journal of Transitional Justice 192 at 197.
188
Aguirre & Pietropaoli, supra note 186 at 333.
189
Roht-Arriaza, supra note 52 at 199-200.
190
Rubio-Marin & de Greiff, supra note 183 at 333.
191
Natsu Taylor Saito, “The Symbolism and Substance of Redress and Reconstruction” (2000-2003)
Third World Legal Stud 161 at 168.
192
Rubio-Marin & de Greiff, supra note 183 at 331; Christine Chinkin “Gender, Human Rights, and
Peace Agreements” (2003) 18 Ohio St J Disp Resol 867 at 876; Saris & Lofts, supra note 129 at
81; Aguirre & Pietropaoli, supra note 186 at 363.
32 Windsor Yearbook of Access to Justice 2012
Rights, “Transitional justice must reach … into the human rights violations that
pre-existed the conflict and caused, or contributed to it.”
193
The structural problems
that preceded the conflict like domestic violence, socio-economic inequality, and
systemic discrimination come into view as part of the reparations debate.
194
High
levels of “post-violence violence” throw into question the “peace” that supposedly
underpins reparations decisions.
195
Massive economic deprivation is most likely to
affect women and children, but transitional justice norms do not define this as a
threat to security and peace. A feminist approach to reparations must ask whether
“an emphasis on ending or containing political violence per se constitutes a full
and thorough response to the multitudes of harms that both accompany and
survive past the ending of formal … hostilities.”
196
Paying attention to the pre-existing conditions of those claiming reparations
unravels the logic of reparations. It exposes that rights-based understandings of
reparations are essentially aimed at correcting errors in the distribution of
resources caused by the conflict. This correction, as Kutz explains, relies on a
normativity, constructed independently, by the pre-conflict distribution of rights
and entitlements.
197
A “right to reparations” is intrinsically incapable of analyzing
whether pre-conflict distributions were fair or just.
C. Problems with Reparations as a Symbol
The dominant account of reparations, as a right, thus presents a number of
problems from a feminist standpoint. However, the solution does not lie in
swinging to a “reparations as symbol” approach that protects groups through
recognition and social standing.
Moving away from the individual’s right to reparation to focusing on collective
rights to symbolic forms of reparation may have negative effects for women and
other marginalized groups. The communitarian notion of the embodied socially-
situated self leaves little room for agency and self-determination, important
feminist concerns.
198
Feminists have also critiqued the romantic view of
community adopted by communitarians. The recognition of groups may in some
cases be used as a justification for perpetuating inequality among and within
groups.
199
Advocating an approach to reparations based exclusively on symbolic forms of
reparation may find little support among women’s groups who articulate their
concerns for reparations around day-to-day survival needs. Many victims’ groups
call for material forms of reparations and stress the need for recognition as rights-
bearing individuals. Furthermore, it is not much of a feminist move to jettison the
193
Louise Arbour, “Economic and Social Justice for Societies in Transition (Second Annual
Transitional Justice Lecture, New York University School of Law Center for Human Rights and
Global Justice and the International Center for Transitional Justice, New York, 25 October 2006)
[unpublished] at 2.
194
Duggan et al, supra note 187 at 207; Rubio-Marin, supra note 180 at 30.
195
Theidon, supra note 11 at 34.
196
Fionnuala Ní Aoláin“Political Violence and Gender during Times of Transition” (2006) 15 Colum
J Gender & L 829 at 847.
197
Kutz, supra note 163 at 302.
198
Lacey, supra note 5 at 54.
199
O’Rourke, supra note 31 at 272.
Vol. 30(1) Thinking Past Rights 33
hardness of rights for the softness of symbols, when in practice this would mean
that the real work of reparations, as rights, would focus on an androcentric
understanding of conflict. Given the importance of rights in the understanding of
reparations advanced by women’s rights activists, it does not make sense to argue
that a feminist understanding of reparations must concentrate only on its symbolic
dimensions.
Nevertheless, women articulate a need for measures to restore the dignity of
survivors of the conflict, and very often these measures will take a symbolic form.
Even the rights-based forms of reparation, like compensation or preferential access
to services, function in a symbolic register: no amount of money or free health
care will repair the victim, but the public choice to provide those forms of
reparations sends a symbolic message about the desire to repair their dignity and
standing in the community.
For feminists, however, dignity is a bit of Trojan horse. Sexual violence as a
tool of war is decried by feminist activists because it physically and
psychologically damages the woman or girl, and because it tarnishes her
reputation in the community, sometimes leading to her permanent banishment.
Reparation programs that aim to restore her dignity attempt to achieve a
reconciliation between the victim and the family and community. But the stigma
associated with surviving sexual violence is deeply enmeshed with attitudes that a
woman’s sexual chastity determines her worth and that a woman’s body is an
object which certain men, but not others, may legitimately access.
200
In this
context, restoring her dignity may reinforce patriarchal meanings attached to
women’s sexuality.
201
Feminist ways to recognize the harm of sexual violence and
restore dignity are far from obvious.
D. Redefining Reparations as Processes
Understanding reparations as rights or symbols presents some theoretical
problems and fails to capture how women articulate their understanding of
reparations. Instead of thinking of reparations as a program aiming to achieve
material or symbolic justice goals, it makes more feminist sense to think of
reparations as a process which is both forward and backward-looking and has an
open outcome.
Victims of human rights crimes need both rights to property and symbolic
respect in the social sphere: “a fundamental goal should be to ensure that any
reparations model includes both material and symbolic components.”
202
Feminist
theory has critiqued the ways in which rights both limit and structure claims for
equality and recognition.
203
By rejecting a dichotomy between rights and symbols,
200
Meintjes, supra note 10 at 12.
201
Rubio-Marin, supra note 180 at 33.
202
Ernesto Verdeja, “Reparations in Democratic Transitions” (2006) 12 Res Publica 115 at 122.
203
See Elizabeth M Schneider, “The Dialectic of Rights and Politics: Perspectives from the
Women’s Movement” in Katharine T Bartlett & Rosanne Kennedy, eds, Feminist Legal Theory:
Readings in Law and Gender (Boulder: Westview Press, 1991) 321; Judy Fudge, “The Canadian
Charter of Rights: Recognition, Redistribution, and the Imperialism of the Courts” in Tom
Campbell, KD Ewing & Adam Tomkins, eds, Sceptical Essays on Human Rights (Oxford: Oxford
University Press, 2001) 335; Frances Olsen, “Statutory rape: a feminist critique of rights analysis”
(1984) 63 Tex L Rev 387; Stephanie Palmer, “Feminism and the Promise of Human Rights:
Possibilities and Paradoxes” in Susan James & Stephanie Palmer, eds, Visible Women: Essays on
34 Windsor Yearbook of Access to Justice 2012
Reparations as Process” has the possibility of answering both women’s needs for
material compensation and their needs for rehabilitation, recognition, and respect.
For survivors of sexual violence or other highly stigmatized crimes, a strong
connection exists between income generating opportunities and personal
reputation, so the decision to pursue both types of reparations is crucial. Victims
need to be respected as citizens, but in a way which recognizes that they are
situated and contextually-influenced individuals.
A process-based approach to reparations, in corresponding to a process-based
understanding of justice, also better responds to feminist concerns about a false
opposition between socio-economic and cultural justice.
204
The material or cultural
definitions of justice and the remedies of redistribution or recognition lead to
remedies which affirm rather than upset the root causes of inequality. If either the
rights or symbol-based theories of reparations are taken in isolation, there is little
room for exposing and questioning the assumptions that structure women’s
unequal citizenship and their roles as symbols of national purity. This focus on
transformation explains why a feminist approach to reparations needs to address
pre-existing laws that deny basic legal rights. It is impossible to realize the right to
reparations, understood even in its narrowest terms as a right to monetary
compensation, if laws denying rights to hold title to land or open bank accounts
are not changed.
Feminist concerns about the construction of identity are better addressed
through a process-based approach to reparations. The liberal, neutral individual of
rights-based theories is, in practice, a description of the relatively privileged man,
while the emphasis on culture and social groupings in communitarian theories
often comes loaded with norms about women as symbols and protectors of the
nation.
205
To jettison this distinction, it is necessary to examine the reality of
privilege and discrimination, across lines of race, gender, class, and other social
markers, and construct reparations processes which question and disturb these
structures.
Understanding reparations as a process helps to explain why local participation
and decision-making are at the heart of reparations.
206
The process of debating,
designing, and implementing reparations becomes potentially reparatory in itself.
In every conflict, there persists a “meta-conflict”, or a conflict about what the
conflict is about, and the reparations process can facilitate open and inclusive
dialogue about these meanings.
207
The justice in reparations is thus to be found not
in the ideal allocation of rights and symbols, but in a process which the society
perceives as having achieved a reparatory effect. This view helps to explain why
women activists regard their active participation in politics as part of reparations.
208
Their exclusion from political life is part of the structure of injustice before and
Feminist Legal Theory and Political Philosophy (Oxford: Hart Publishing, 2002) 91; Patricia J.
Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991).
204
This mirrors the argument in the development studies field that gender-sensitive approaches to
development must address both women’s practical and strategic gender needs; see CA Moser,
Gender Planning and Development: Theory, Practice and Training (London: Routledge, 1993).
205
Colleen Duggan & Adila M. Abusharaf, “Reparation of Sexual Violence in Democratic
Transitions: The Search for Gender Justice” in De Greiff, 2006, supra note 32 623 at 626-7.
206
Duggan et al, supra note 187 at 205.
207
O’Rourke, supra note 31 at 290.
208
Duggan & Abusharaf, supra note 205 at 643.
Vol. 30(1) Thinking Past Rights 35
after the conflict. For reparations programs to achieve justice, they must, in the
process of their design and implementation, remedy the gaps in representation in
public life by specifically including women and other marginalized groups. The
process of reparations must be participatory, inclusive, and democratic. Analyzing
this process from a feminist perspective could usefully draw on the wide-ranging
literature in feminist political science on political transitions.
209
With a process-based justification of reparations, a range of goals can be
pursued with a variety of policy instruments legal claims, symbolic
commemorative processes, public hearings, and monetary compensation, for
example. A process-based definition ensures that a range of suitable remedies are
available to a diverse pool of potential beneficiaries of reparations. For example,
preferential access to services would allow cash-strapped governments to forego
special funds to individually compensate victims, while at the same time providing
a public recognition of victims’ suffering.
210
As some victims emphasize health and
education needs over controversial compensation awards, such programs may
directly meet victims’ expectations. “Reparations as Process” provides an
umbrella concept for the broad definition of reparations adopted by women’s
rights activists.
A more pragmatic view of a post-conflict transition process may also justify
the Reparations as Process” approach.
211
A reparations program competes with
other state priorities in the post-conflict period, such as investing in education,
infrastructure, health care, and the judiciary. Governments may try to
accommodate demands of victims’ groups, the broader population, businesses, the
international community, and other stakeholders. Permitting certain development
measures to be understood as part of a reparations program allows the government
room to respond to all these constituencies. This epitomizes reparations
understood as a process, as it permits reparations to be both backward looking (in
responding to victims) and forward looking (in responding to broader interests).
To the extent that the conflict may have its roots in underlying inequalities and
socioeconomic conditions that arose from chronic government under-investment
in its citizens’ welfare, such measures could help to set the country on a path
towards both reconciliation and a more stable future.
Should reparations, as a process, be thought of as part of development? This is
hotly contested.
212
The central objection is that the reparations-as-development
formulation permits the government to fulfill its obligations by funding
developmental activities which it is already bound to undertake, thus denying
victims justice.
213
Related to this criticism is the concern that the concept of
development as reparations lacks the link between the individual victims and the
reparations measure.
214
A third objection concerns the practical impossibility of
achieving social development through a short-term reparations program, no matter
209
O’Rourke, supra note 31 at 285.
210
Roht-Arriaza, supra note 52 at 198-99.
211
Ibid at 189.
212
For an overview of the debate, see Pablo de Greiff & Roger Duthie, eds, Transitional Justice and
Development: Making Connections (New York: Social Science Research Council, 2009).
213
Roht-Arriaza, supra note 52 at 189.
214
De Greiff, supra note 159 at 7.
36 Windsor Yearbook of Access to Justice 2012
how large or well-funded. Some feminist commentators argue that there should be
a bright line between reparations and development.
215
Others, however, argue that the rigid distinction between reparations and
development should be abandoned.
216
Activities which might be classified as
development could be framed in ways which give them reparatory effects and
meanings. There seems to be some support for this more expansive approach to
reparations in the views of women activists. Under the concept of reparations,
women include claims that might look like development: education, housing,
economic policies to improve access to markets, and reforms to discriminatory
laws and practices.
But many activists are emphatic that the government cannot “undertake
development instead of reparations.”
217
One way of understanding this concern is
that it is about lack of political will: victims are concerned that their needs will be
overlooked in the name of general social policy goals. The relationship between
reparations and development raises some tough questions. How does one reconcile
the rejection of development as a goal of reparations with a feminist approach to
reparations that reveals and repudiates pre-conflict structural inequalities and
injustices? When approached from a feminist perspective, the relationship between
reparations and development is arguably where the rubber hits the road.
Notwithstanding these disagreements, it can be argued that development would
bring to the reparations agenda norms and ways of working.
218
There is a huge
variety of approaches to development policy and practice, ranging from the World
Bank to local level NGOs. A strand of development theory and practice values
local knowledge, agency, participation, bottom-up planning, and empowerment.
Practical working methods have been developed to achieve these goals.
219
Policy
and practice on reparations could learn from this experience.
From the vantage point of feminist theory and women activists, Reparations
as Process” offers the best theoretical model for understanding reparations. There
is no blueprint for approaching reparations as a process, as it requires negotiation
in the specific post-conflict context in which reparations decisions are being made.
There are some characteristics of such an approach that can be discerned. It is
easiest to begin by describing what reparations are not: they are not only rights, or
symbols, and they cannot be achieved simply with technical or juridical methods.
“Reparations as a Process” results in an approach which incorporates rights-based,
symbolic, and redistributive goals. As ICTJ’s study noted, the most just
215
Goldblatt, supra note 63 at 211.
216
Saris & Lofts, supra note 129 at 91; Aguirre & Pietropaoli, supra note 186 at 366.
217
Nairobi Declaration, supra note 61 at 3-B.
218
Aguirre & Pietropaoli, supra note 186 at 369.
219
See Arturo Escobar, Encountering Development: the Making and Unmaking of the Third World
(Princeton, N.J.: Princeton University Press, 1995); Uma Kothari & Martin Minogue, eds,
Development Theory and Practice: Critical Perspectives (Houndmills, UK: Palgrave, 2002);
Majid Rahnema & Victoria Bawtree, eds, The Post-development Reader (London: Zed Books,
1997); Andrea Cornwall, The Participation Reader (London: Zed Books, 2011); Kriemild
Saunders, ed, Feminist Post-development Thought: Rethinking Modernity, Post-colonialism &
Representation (London: Zed Books, 2002); Robert Chambers, Ideas for Development (London:
Earthscan, 2005).
Vol. 30(1) Thinking Past Rights 37
approaches to reparations are complex and multi-faceted.
220
Reparations are hybrid
and both forward and backward-looking. They demand an inter-disciplinary
approach, as they trample through the delineations between law, politics,
economics, development, and public policy. A feminist theoretical approach to
reparations requires an acknowledgement of the importance of rights and symbols,
framed by a broader concern for the contexts in which reparations decisions are
made and the public processes that produce them. It must see the individual as
both a rights-bearing citizen and a member of a community. At the centre of
reparations should be an understanding of the self as responsive, contingent, and
constructed relationally. This understanding of identity would provide the
theoretical room for the dynamic and sometimes conflicting identities performed
by women in the aftermath of conflict (for example, a reparations claim from a
woman who joined a fighting force and was then forced into sexual slavery, as
both a victim and perpetrator). This process-based understanding opens space for a
definition of justice, and a justification for reparations, that is open-ended,
inclusive, and able to be adapted to the societal context. Most fundamentally, a
feminist approach to reparations questions what we are trying to “repair” and
pushes for an understanding of “post-conflict” as an opportunity for
transformation.
VIII. CONCLUSION
The notion of reparations encompasses debates about the relationship between
individual and society, the nature of political community, the meaning of justice,
and the impact of rights in social change. The prevailing transitional justice winds
reflect “a highly limited politics intended, for the most part, less at democracy-
building, than at the threshold aims of peace and stability”
221
and “a broader
attempt to create a new world order of liberal democracies in which politics is
forever deferred and history comes to an end.”
222
The dominance of rights-based
approaches to reparations reflects consistency with these trends. But, as I have
shown, this predominant normative framework is out of step with the
understanding of reparations circulating among many women activists. The
theoretical approach to justice and reparations developed in this paper helps to
explain the gap between the international normative framework and activist
discourses. Based on distributive, communitarian, and critical theories of justice, I
argued that reparations can be thought of as rights, symbols, or processes.
Approaching reparations as either rights or symbols is rife with problems when
approached from an activist and feminist theoretical standpoint. As decisions
about reparations programs are and should be determined by the political, social,
economic, and cultural context, a blueprint for “a feminist reparations program” is
impractical and ill-advised. However, the strongest feminist approach to
reparations would depart from an understanding of reparations as a process.
Reparations are fundamentally political, meaning that there will be compromise
220
Rubio-Marin & de Greiff, supra note 183 at 321; Pablo de Greiff, “Repairing the Past:
Compensation for Victims of Human Rights Violations” in De Greiff, 2006, supra note 32 1 at 9-
13.
221
Ruti Teitel, “Transitional Justice in a New Era” (2003) 25 Fordham Int’l LJ 893 at 898.
222
Anne Orford “Commissioning the Truth” (2006) 15 Colum J Gender & L 851 at 852.
38 Windsor Yearbook of Access to Justice 2012
and that there might be mistakes. Neither the hard language of rights nor the
resonance of symbol will provide answers to the long-view, structural
transformations that the post-conflict moment demands.
... Some of the participants identified disrespect by the partner as one of the factors that made them abuse their partners which is similar to Painter (2012). Failure to assist in taking care of the children in relationships was identified as one of the factors that led to intimate partner violence. ...
Article
Full-text available
Background: Men’s experiences of perpetration of intimate partner violence against their female heterosexual partners following disclosure of their HIV positive status is a global health problem. The forms of IPV and factors associated with IPV following the disclosure are under-researched. In this article, we aim to explore and describe the forms of and factors associated with men’s experiences of perpetration of IPV against their female partners following the disclosure of seropositive HIV status. Methods: An exploratory qualitative research design using an interpretive phenomenological analysis method was employed for the data collection from participants (men) who perpetrated violence against their HIV positive women. The study setting was done in two HIV clinics in two Hospitals. The study population consisted of all men whose intimate partners had been diagnosed HIV positive and made known to their partners and are seeking healthcare at the two HIV clinics. Purposive sampling technique was employed to recruit participants for the study. An interpretive phenomenological approach was employed for the collection and analysis from eighteen men whose partners had recently disclosed their seropositive HIV status. An interview guide was the tool employed for the data collection. Data collection and analysis were undertaken concurrently. Results: Most of the participants identified and described the forms of and factors associated with IPV influencing them to perpetrate IPV. Five themes and sub-themes emerged and these include; emotional factors, spousal related factors, Social related factors, Sex-related factors and some forms of IPV which were identified by participants. Each of these themes has subthemes. Conclusion: Men use different forms of IPV violence in abusing women who disclosure their HIV seropositive status. Several factors as identified in this study accounts for this partner violence. Forms and factors associated with intimate partner violence should be used as a guide in formulating policies and developing a guide that can be utilised in the early detection of IPV in this category of women.
Article
Full-text available
Solidarity with Indigenous land-based struggles, such as the #NoDAPL movement, reminds us that political affiliations cross racial lines, transcending aspects of tribal and national identity and community attachment. But does solidarity operate according to the politics of sameness, as in unwavering support for the political terrain demarcated by social justice struggles, or is there room among its many manifestations for opposition and challenge? The three books that comprise this review essay explore the tensions associated with enacting solidarity as they reflect on the social and cultural possibilities represented by Indigenous justice struggles. Their investments in examining the political stakes of solidarity—in the Oceti Sakowin’s resistance to the Dakota Access Pipeline Project, in Afrofuturist and Indigenous speculative fiction that traces the boundary between Black and Indigenous political formations, and in the tensions that exist among American Indian writing from the interwar and pre-civil rights era—help us to understand how Indigenous solidarity is connected to complex histories, settler-colonial relations, and systemic inequalities, as well as the political promise that social justice movements create.
Article
With the support of the private sector, civil society, philanthropic organizations and communities, governments from developed and developing nations around the world are scaling up their implementation efforts for achieving the bold and trans-formative vision of the 2030 Agenda for Sustainable Development. The importance of death registration and certification, and the power of cause of death data, is increasingly discussed in high-level multilateral and bilateral forums in relation to country monitoring and measurement of the 17 Sustainable Development Goals (SDGs), which were agreed upon by the UN member states at a high-level summit in September 2015 to replace the Millennium Development Goals on their December 2015 expiration. Routinely, however, human rights and development practitioners are removed from these important multi-stakeholder conversations on civil registration and vital statistics (CRVS) system strengthening occurring at global, national, and subnational levels. This article will therefore explain why such practitioners might not have traditionally engaged in CRVS-related discussion in the past but must urgently engage now. Indeed, both the positives and negatives of SDG-CRVS system improvement, combined with the escalating need for human rights-based approaches to data and technology, will necessitate involvement from human rights advocates and scholars worldwide in the coming decade and beyond.
Article
Full-text available
The awareness that slavery did not disappear with abolition has brought back discussions about dichotomies and tensions that were left unresolved in the context of the abolition. Remedy for people that were enslaved is among these unresolved issues. Brazil became one of the first countries to recognize the existence of contemporary slavery. However, when workers are rescued by government’s agents from slave labor, remedy measures seem inadequate to guarantee that they will surpass the vulnerabilities that lead them to be exploited in the first place. To understand the challenges preventing the effectiveness of the remedy system, this article relies on the collaboration with workers from Barras (Piauí), that were subjected to slave labor in the Brasil Verde Farm. The workers’ narratives – collected through oral history methodology, during a fieldtrip to Piauí, in March 2016 –, help to overcome the ongoing debate on remedy studies related to the discourse of victims’ “wants and needs”, and reveal that any reparation measure that intend to promote social emancipation has to deal with the absences of the right to participation, security, adequate standards of living, health, adequate housing, education, and also access to land.
Article
Full-text available
This book examines the place of human rights in peace agreements against the backdrop of international legal provision. The book examines the role of peace agreements in peace processes, drawing on an appendix of over 100 peace agreements signed after 1990, in over forty countries. Four sets of peace agreements are then examined in detail: those of Bosnia Herzegovina, Northern Ireland, South Africa, and the Israeli-Palestinian conflict. The human rights component of each of these agreements are compared with each other - focussing not on direct institutional comparison, but rather on the set of trade-offs that comprise the 'human rights dimension' of the agreements. This human rights dimension is also compared with relevant international law. The book focuses on the comparison of three main areas: self-determination and 'the deal', institution-building for the future, and dealing with the past. The book argues that the design and implementation prospects are closely circumscribed by the self-determination 'deal' at the heart of the agreement. It suggests that the entangling issues of group access to power with individual rights provision indicates the extent to which peace-making is a constitution-making project. The book argues in conclusion that peace agreements are in effect types of constitution, with valuable lessons about the role of law in social change in both violent conflict and more peaceful contexts.
Article
How did the industrialized nations of North America and Europe come to be seen as the appropriate models for post-World War II societies in Asia, Africa, and Latin America? How did the postwar discourse on development actually create the so-called Third World? And what will happen when development ideology collapses? To answer these questions, Arturo Escobar shows how development policies became mechanisms of control that were just as pervasive and effective as their colonial counterparts. The development apparatus generated categories powerful enough to shape the thinking even of its occasional critics while poverty and hunger became widespread. "Development" was not even partially "deconstructed" until the 1980s, when new tools for analyzing the representation of social reality were applied to specific "Third World" cases. Here Escobar deploys these new techniques in a provocative analysis of development discourse and practice in general, concluding with a discussion of alternative visions for a postdevelopment era. Escobar emphasizes the role of economists in development discourse--his case study of Colombia demonstrates that the economization of food resulted in ambitious plans, and more hunger. To depict the production of knowledge and power in other development fields, the author shows how peasants, women, and nature became objects of knowledge and targets of power under the "gaze of experts." In a substantial new introduction, Escobar reviews debates on globalization and postdevelopment since the book's original publication in 1995 and argues that the concept of postdevelopment needs to be redefined to meet today's significantly new conditions. He then calls for the development of a field of "pluriversal studies," which he illustrates with examples from recent Latin American movements. © 1995 by Princeton University Press. 1995 by Princeton University Press.
Article
Sexual and reproductive violence (SRV) perpetrated against women during war or under authoritarian regimes is one of the most severe manifestations of gender-based violence. The authors ask how governments in new or reforming democracies hope to repair SRV and how state programs for reparation might be conceptualized and delivered. By examining the cases of Guatemala and Peru, they explore the problematic of repairing damage caused by SRV and comment on prospects for redress to victims in each country.
Article
This article proposes a normative theory of reparations for political violence from the standpoint of contemporary critical theory debates on recognition and redistribution. I argue that any satisfactory reparations theory should aspire to ‘status parity’, a term coined by Nancy Fraser, and should include symbolic and material components for both individuals and groups. The essay argues that reparations can promote a number of worthy goals, including the reaffirmation of moral respect and dignity of victims.