REVIEW ESSAY:REPARATORY JUSTICE - A ROAD TO RECONCILIATION? ON THE ROLE OF REPARATIONS IN TRANSITIONAL JUSTICE THEORY.
Patricia B. Hayner. Unspeakable Truths: Confronting State Terror and Atrocity, Routledge, New York and London 2001. Ruti Teitel. Transitional Justice, Oxford and New York, Oxford University Press, 2000.
I Patricia.B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, Routledge, New York and London 2001; Ruti Teitel, Transitional Justice, Oxford and New York, Oxford University Press, 2000.
2 Teitel, 2000, op. cit., p. 213. 3 This is the title of a recent volume focusing on the relative virtues of truth commissions versus trials, which is the dominant debate in the transitional justice literature. Robert I. Rotberg and Dennis Thompson (eds.), Truth V. Justice. The Morality of Truth Commissions, Princeton and Oxford, Oxford University Press, 2000. See also , Robert I. Rothberg, "Book Review: Transitional Justice. By Ruti G. Teitel" in American Political Science Review, Vol. 95, No. 3, 2001.
4 Teitel, 2000, op. cit., p. 117. 5 Hayner, 2001, op. cit., p. 171 (emphasis omitted). 6 According to Teitel, the origin of the word "redress" "relates to the attire worn in public ceremonies signifying a distinct status." Teitel, 2000, op. cit., p. 120. Under international law, states violating their duties are obliged to repair. Ibid., p. 119. 8 Transitions are not necessarily in a liberalising direction, but this discussion is left aside here.
9 Teitel, 2000, op.cit., p.119. 10 Ibid., p. 135. " Hayner, 2001, op. cit., p. 161 12 Ibid., p. 161. For Hayner, this is a mark of a successful transition. '3 Ibid., p. 159.
14 Teitel, 2000, op.cit., 125. 15 Ibid., p. 122-29. Hayner, 2001, op. cit., 172-80. 16 Hayner, 2001, op.cit., p. 311. ]7 Ibid., p. 186-195. 'e Ibid., p. 311. '9Ibid., p. 164
The adoption of reparatory justice measures as part of a political transition is not a new phenomenon. Teitel gives an account of how war settlements and other changes of the social order traditionally have been accompanied by measures redistributing resources and status in order to compensate for damages and rectify past injustice in accordance with the norms of the new order. Commonly, redress has also been provided on the basis of an officially acknowledged account of past injustice (for example, when reparations are awarded in a court of law). Some of the institutional mechanisms are relatively recent, however, such as the phenomenon that is the focus of Patricia Hayner's book: namely, the tendency to link reparatory measures to what have come to be known as truth commissions - processes of large-scale, organized truth-telling outside of the legal apparatus. Truth-telling and reparatory justice The primary objective of truth commissions is to provide an authoritative story of past repression and human rights abuse, its nature, scope and lines of responsibility. The central arguments are that by knowing what happened, victims can attain closure, and that a platform of shared knowledge can make it possible for different groups in society to reconcile with each other and with a state apparatus whose agents were responsible for repression in
20 Ibid., p. 145. 21 Ibid., p. 135-40. 22Ibid., p. 14 1.
z3 In South Africa attempts were made to set up a system to refer victims to further counselling, but it never became functional on a wide scale. Ibid., 140. 24 Fred Hendricks, "Jettisoning Justice: the Question of Amnesty in South Africa" Paper presented at "Gathering Voices: Perspectives on the Social Sciences in Southern Africa", ISA Regional Conference for Southern Africa, Durban, South Africa, 1996. 25 Hayner, 2001, op.cit., p. 314-17.
zs �td., p. 178-79. 27 These may have great practical and monetary value: for example, by making it possible for families of disappeared people to effectuate wills and close estates. In some cases, administrative measures are put in place to restore property rights, which of course is a most tangible benefit. 28 Hayner, 2001, op.cit., p. 170-182, 310-317. 29 In Latin America, truth commission investigations have often been limited to disappearances and killings, excluding other, more frequent human rights violations. In South Africa, the mandate of the TRC was limited to gross human rights violations in breech of the domestic law of the day, excluding violations resulting from unjust Apartheid laws.
'o Hayner, 2001, op.cit., p. 173-74. 31 Similar issues of relevant differences between groups of victims arise at the international level, where we have seen that the reparation payments to the Jewish people after the Holocaust has led to claims from several African states that transcontinental slavery be similarly compensated. 3z Hayner, 2001, op.cit., p. 181. 33 Critics such as Mahmood Mamdani have argued that, under such conditions (of which South Africa is an example), it is more appropriate for the new regime to adopt a forward-looking approach focusing on reforms addressing the needs of the population as such, regardless of whether these needs arise from a particular set of gross human rights violations committed in a particular period of the past. See Mahmood Mamdani, "Reconciliation without Justice", South African Review of Books, Vol. 46, 1996. 34 Hayner, 2001, op.cit., p. 181.
3s To the South African truth commissioners the slow and limited political response to their recommendations for reparation and rehabilitation of victims has been a great disappointment and is seen to compromise their efforts to provide restorative justice. Wendy Orr, "Reparation Delayed Is Healing Retarded" in Charles Villa-Vicencio and Wilhelm Verwoerd (eds), Looking Back Reaching Forward, Cape Town, University of Cape Town Press, 2000. 36 The processes can also be completely de-linked. Not only have there been truth commissions without reparations, but also, as Hayner notes, some of the most comprehensive restoration programmes to date have been implemented without a truth commission process. Examples include Germany's reparation payments to Jews after the Holocaust, Brazil's compensation to families of people who disappeared during the junta regime, and the USA's compensation to Japanese-Americans interned during the Second World War. Hayner, 2001, op-cit., p. 181. It is not clear whether Hayner sees this as inferior to reparations resulting from a truth commission.
� Hayner, 2001, op.cit., p. 155. 38 Martha Minow, "The Hope for Healing: What Can Truth Commissions Do?" in Rotberg and Thompson (eds), op cit. '9 That is, successful in the sense of securing the liberalizing transition. Teitel notes that the compromises with basic rule-of-law principles that are characteristic of transitional justice may have consequences for long-term democratic consolidation.
40 Hayner, 2001, op.cit., p. 154. 41 Teitel 2000, op.cit., p. 120. "In ideal theory, principles of corrective justice are largely backward-looking, relating chiefly to individual victims' due. In their transitional form, however, reparatory measures have a 'hybrid' nature, with corrective goals linked to broader societal concerns" ibid., p. 218. °z Ibid., p. 130, citing the preamble of Hungary's Compensation Laws (No 25 1991). ).
43 Ibid., p. 219 (emphasis added). 44 Ibid., p. 219.