The traditional aim of reparations is to place the victim back in the position they would have been in had the harm not occurred. Academics and practitioners have criticised this traditional approach to reparations for serious crimes and human rights violations as failing to address socio-economic disparities and unequal power structures. The recent transformative reparations theories grew out of the belief that it is ineffectual to place marginalised victims back in positions of marginalisation following serious harm. The desire to transform the lives of victims as well as the power structures that sustain unequal relationships is compelling. As a result, this idea has been influential within academic and policy-making circles, and endorsed by the United Nations, the International Criminal Court, and regional and domestic jurisdictions. Despite this, it remains unclear what ‘transformation’ means in theory and in practice. The purpose of this article is to critically examine transformative reparations and explore whether the notion is in fact changing the game or rather more of the same. It questions the utility of the label ‘transformative’ and its suitability in specific contexts. It concludes that outside the international(ised) criminal context, and especially in the national and local context, there may be greater scope for reparations with transformative potential, but only when victims and affected communities play a central role in the decision-making, and when linked with other non-temporary, structural changes. Even under these circumstances, reparation authorities should be cautious of raising false expectations that reparations will be transformative.
Dr Brianne McGonigle Leyh is an Associate Professor and Dr Julie Fraser is an Assistant Professor with the Netherlands Institute of Human Rights (SIM), and both are members of the Montaigne Research Centre for the Rule of Law and Administration of Justice, Utrecht University, The Netherlands. This article was presented at the University of Cambridge, UK, on 17 November 2018 at a workshop entitled ‘Rethinking Reparations in International Law’, co-sponsored by the Lauterpacht Centre for International Law and the European Society of International Law. Thanks to Leila Ulrich, Elena Butti, Rachel Killean, SIM Colleagues, and the anonymous reviewers for their insightful comments on earlier drafts. Any mistakes or omissions are the authors’.
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