Transformative Reparations Research Articles

Building An Abolition Movement for International Criminal Law?

Abstract International criminal law is a carceral system, which responds to mass atrocities by holding some individuals criminally responsible for these events and then, generally, imprisoning those individuals. I ask what alternative responses might be envisaged, and if we can build a carceral abolitionist movement for international criminal law. Such a movement would refuse imprisonment and policing as the main responses to mass atrocity, and instead would seek to understand the social causes and conditions that cause such mass atrocity, and also how (and why) criminal law has become the preeminent ‘legitimate hand of justice’. In this article, I attempt to bring into conversation two particular intellectual movements: the collective scholarship and praxis of domestic carceral abolition movements; and those critical scholars of international criminal law who have already set out some of the limits and possibilities of the field. I set out the structural conditions of international criminal law, particularly its ideological grounding in neoliberalism and its relationships to race, global capital and colonialism and imperialism, which result in a legal system that criminalizes some and exonerates others. I then particularly examine some tools that already exist for building an abolition movement for international criminal law. These include the defence of duress, transformative reparations and the role of defence lawyers. These tools are admittedly part of the carceral system, and therefore cannot be the key to an abolition movement for international criminal law. However, they may assist us in the short or medium term as we imagine and work towards a better world without the need for a carceral system of international criminal law that relies on police and prisons.

Reparations, Time, and Decolonizing Postcolonial Violence towards Global Gender Justice

Abstract: Reparations are emerging as a world-making project, as a political goal that moves us beyond models of responsibility that come primarily in the form of bombs and sexual violence as we have seen in the United Nation's Responsibility to Protect (R2P). In this paper, we argue that reparations are a world-making project which challenges simultaneously colonization and enslavement in their newer incarnations of capital and gendered violence in war. We first engage with the debates on violence and postcoloniality. Second, we engage with the politics of reparations and gender. To do so we focus on feminist transformative reparations and repair debates. Some of the mainstream literature of liberal and progressive orientations remain within the realm of integrating survivors of violence within racial-national compacts, thereby evading the inter-related forms of violence and extractions that underwrite such integration and social compacts. Third, we turn to reparations, gender, and time. Fourth, we work towards a definition of radical repair. Fifth, we consider reparative practices as decolonization movement in its multiple registers—as acts of undoing structures of violence and its incarnation/s in war, and as acts of justice—moving beyond the dominant juridical or financial definitions of reparations (as established by the colonial state, or by capitalist legal systems) to think reparation as an active process oriented towards futures that does not lose sight of the ongoing 'liveness' of the colonial. Finally, in the concluding section, we discuss reparations as abolition. We argue that transformative reparations are not mere restitutions but attempts to challenge presuppositions about the world and its making as well as abolish this "simple" and death world, while envisioning reparations as solidarity and love, in the heterogeneity of bodies, words, affects, sounds, movements, and intensities.

The Case for Transformative Reparations: In Pursuit of Structural Socio-Economic Reform in Post-Conflict Societies

ABSTRACT This article evaluates the pillar of reparations within transitional justice and contributes to debates about the significance of structural socio-economic reform in post-conflict societies. Drawing on the experiences of South Africa and Tunisia, I argue that transitional justice must advocate a praxis of transformative reparations. Transformative reparations, working alongside complementary mechanisms within a long-term transitional justice agenda, can help to enable the transformation of groups, communities, and regions out of generational cycles of poverty, discrimination, and exclusion. Those engaged and active in such processes are thus afforded the resources and centrally positioned to (self-)empower the renegotiation of power relations that facilitated past and ongoing structural socio-economic violations.

State (ir)responsibility and the (un)making of transformative reparations at the Extraordinary Chambers in the Courts of Cambodia

ABSTRACT To what extent are reparations still meaningful when a government is unwilling or unable to deliver or endorse these initiatives? And what are the consequences for transitional justice when private authorities and external actors step in and abdicate the state’s responsibility to deliver these public goods after a war? This article explores opportunities for public-private actor collaborations in this area and argues that the act of state abdication creates a legitimacy gap in reparations programmes that compromises their value as a public good that can offer satisfaction and guarantees of non-repetition. It further contends, through a detailed case study of the reparations process of the Extraordinary Chambers in the Courts of Cambodia, that ‘letting the state off the hook’ can effectively embolden governments to capitalise on and/or politicise reparations by taking credit for them, thereby, having a detrimental effect on their transformative potential.

From ecocide to eco-sensitivity: ‘greening’ reparations at the International Criminal Court

ABSTRACT This paper considers the possibilities and challenges facing international criminal law as a method of meaningfully responding to environmental destruction. Noting the interconnections between environmental destruction and the causes, conduct and impacts of mass violence, scholars have explored multiple ways in which international criminal law might be better equipped to respond to such harms. These have ranged from using existing provisions to introducing a new crime against the environment. This paper examines the evolution of these approaches and considers the capacity of international criminal law to respond to environmental destruction. In light of the challenges associated with introducing a new crime, it focuses on the possibilities associated with ‘greening’ the Rome Statute. Building on this approach, the paper considers whether the reparation framework adopted by the International Criminal Court offers an opportunity to meaningfully respond to environmental destruction and related human rights violations. It argues that there are three main ways in which this might be done: (i) by introducing the concept of ‘eco-sensitivity’ to reparations designed to respond to other anthropocentric harms; (ii) by awarding reparations that explicitly recognise the harm caused by environmental destruction when possible; and (iii) by exploring the possibilities of an environmental approach towards ‘transformative reparations’.

Countering Conflict Related Sexual and Gender-Based Violence through Reparations

Across the world, women and girls continue to experience a variety of gendered harms rooted in sex and gender-based discrimination. For the vast majority of women and girls who have experienced conflict related sexual violence (CRSV), justice remains elusive. The need for States to adopt a victim-centred approach in responding to CRSV was recognised by the UN Security Council with the adoption of Resolution 2467 (2019) under its Women, Peace and Security agenda. This means that States must ensure that survivors can access gender sensitive reparations. Transformative reparations are key to breaking the cycle of violence by preventing CRSV in the first place.

The Case for Transformative Reparations for Conflict-Related Sexual Violence in Rakhine State at the asean Intergovernmental Commission on Human Rights

This article addresses the question of whether Rohingya victims of conflict-related sexual violence (crsv) in Rakhine State in 2017 have recourse to transformative reparations at the Association of Southeast Asian Nations (asean) Inter-Governmental Commission on Human Rights (aichr). crsv was widespread during the August 2017 non-international armed conflict in Rakhine State. crsv also occurred in the context of longstanding subjugation of the Rohingya minority by the Government of Myanmar and Myanmar’s security forces perpetrating sexual violence against the Rohingya and other ethnic minorities. Transformative reparations for crsv are reparations intended to engender structural changes to improve victims’ circumstances and guarantee non-recurrence. An evaluation of asean’s human rights frameworks and the mandate, purposes and principles underpinning the aichr, reveals unexplored potential for transformative reparations for crsv at the aichr for Rohingya victims of crsv in Rakhine State in 2017. The asean Coordinating Centre for Humanitarian Assistance is well placed to coordinate the delivery of transformative reparations in Myanmar.

Intersectionality and Transformative Reparations: The Case of Colombian Marginal Youths

The town of San Carlos, highly affected by the Colombian conflict, is often presented as an example of a successful domestic reparations process. Yet not all victims agree with this assessment. A significant number of marginalised adolescents feel that their voices and realities are not reflected in the reparations programme provided by the 2011 Victims’ Law. While the programme promises to transform lives, it does little to change the lives of young people at the margins. This article compares and contrasts the legal framework on reparations for underaged victims with insights drawn from ethnographic research with these youths. The situation of these young people signals that transformative reparations are not working as they should. We argue that this failure is due to the mismatch between the conceptualisation of ‘vulnerable child-victims’ in the text of the law and these youths’ nuanced identities. Using intersectionality, we propose an alternative way forward.

Trapped between Promise and Reality in Colombia's Victims' Law: Reflections on Reparations, Development and Social Justice

Colombia's 2011 Victims' Law aims to return land to millions of internally displaced people and assist survivors in the difficult process of rebuilding their lives through individual and collective reparations. This article analyses the expectations, experiences and needs of two campesino communities involved in this process. Drawing on nine months of fieldwork using ethnographic and participatory visual methods, the article critically engages with transitional justice theory on transformative reparations, and identifies key lessons for the Colombian government to make the Victims' Law live up to its promise of transforming survivors' lives and restoring their trust in the state.

Transformative reparations: changing the game or more of the same?

Transformative reparations: changing the game or more of the same?

Transformative Justice, Reparations and Transatlantic Slavery

This article considers lessons recent debates concerning transitional and transformative justice, and surrounding transformative reparations, could offer to discussions regarding reparations for transatlantic slavery. Even transitional justice programmes aiming to provide transformative reparations in the form of development programmes (such as healthcare, education and housing provision) have enabled governments to avoid addressing structural causes of inequalities. The article argues that calling for reparations for transatlantic slavery in the form of development projects is potentially regressive. Framing development programmes as reparations, as parts of the Caribbean Community Ten-Point Plan for reparations do, risks presenting these as necessary only because of powerful states’ duty to make amends for past wrongdoing. The article calls for advocates of reparations for transatlantic slavery to be more explicit in demarcating the backward- and forward-looking foundations of their claims. The importance of symbolic and non-financial reparations ought to be more explicitly highlighted as a potential contributor to the social repair of transatlantic slavery’s harmful legacies. Moreover, distributive justice should be explicitly emphasized as being necessary to realize the present-day and future rights of people suffering from the historical legacy of transatlantic slavery and not simply because the present situation is the result of historical injustice.

From Victims and Mothers to Citizens: Gender-Just Transformative Reparations and the Need for Public and Private Transitions

From Victims and Mothers to Citizens: Gender-Just Transformative Reparations and the Need for Public and Private Transitions

Foreword: special issue on ‘transformative reparations for sexual violence post-conflict: prospects and problems’

In 2012, the Australian Human Rights Centre at the University of New South Wales, Sydney, Australia hosted an international conference which marked the first ten years of operation of the Internati...

Introduction: reflections on the concept and implementation of transformative reparations

My commitment to securing appropriate redress for violations of women’s rights is rooted in many decades of social justice and human rights activism in my home country of South Africa. I was engage...

The unrealised potential for transformative reparations for sexual and gender-based violence in Sierra Leone

ABSTRACTThe conflict in Sierra Leone was known for the scope and severity of atrocities targeted at civilians, including sexual and gender-based violence (SGBV) mainly perpetrated against women and girls. Post-conflict initiatives included the establishment of a hybrid criminal tribunal, the Special Court for Sierra Leone (SCSL), and a truth and reconciliation commission (TRC). However, neither possessed a mandate for reparations to victims, yet both have made some contribution to tranformation. The judgments and processes of the SCSL have provided a measure of recognition to victims of SGBV. The TRC was required to to pay special attention to the experiences of women and girls in respect of sexual violence and structural inequality. It also interpreted its mandate broadly, in particular to making general recommendations as to the position of women and girls, as well as more specific recommendations as to reparations projects. These recommendations addressed three aspects of gender justice based on Fraser (recognition, representation and redistribution) and offered considerable scope for transformative reparations for victims of SGBV, including through structural, legal and social changes intended to guarantee the non-repetition of sexual violence. However, this article argues that although several of the TRC’s recommendations had transformative potential, much of this potential has not been realised due to the failure of the government to implement those recommendations.

Reparations for victims at the International Criminal Court: a new way forward?

ABSTRACTReparations at the International Criminal Court (ICC) raise victims’ expectations that they would have an avenue of redress in the face of domestic impunity. This article examines the purpose of reparations at the ICC, which notably move away from the international-law state-centric modes of liability for reparations to more private-law individual liability and even developmental or subsidiary responsibility when provided by the Trust Fund for Victims. At the crux of the debate on reparations at the ICC rests the challenge of delivering justice to victims of international crimes against the limited capacity and jurisdiction of the Court. To overcome these limitations and to better realise expectations of reparations at the ICC, this article explores the promise of transformative reparations in trying to widen the benefits of reparations beyond those victims who suffer crimes by a convicted person, as well as tackling the causes of such crimes. Likewise this article will posit the role of complementarity and state responsibility in filling the gap between expectations and possibilities of reparations. In concluding it will also examine future prospects and challenges of a separate reparations chamber.

Transformative Reparations for Women and Girls at the Extraordinary Chambers in the Courts of Cambodia

Reparations programmes are one form of response to violence. However, scholars have criticized their tendency to focus on restoring victims to the position they were in before the conflict began, usually through awarding restitution, compensation or rehabilitation measures. Instead, critics have suggested that reparations should aim to transform the societal conditions that contribute to sexual violence and the inequality of women and girls through recognition, redistribution and representation. This article builds upon this emerging scholarship to explore the potential for transformative reparations in international criminal tribunals through examining the reparations mandate and practice of the Extraordinary Chambers in the Courts of Cambodia (ECCC). It concludes that the ECCC’s legal and institutional framework, and the context in which it operates, limit the contribution that it can make to transformation. It is therefore important to be realistic about what can be expected from such institutions.

Transformative Reparations? A Critical Look at a Current Trend in Thinking about Gender-Just Reparations

Gender justice in reparations for women requires that entrenched oppression or disadvantage suffered by women does not result in women being deprived of recognition as victims and of access to full and effective reparation. An idea has taken hold in both policy and academic inquiry that gender-just reparations should be ‘transformative’ rather than (merely) corrective or restorative. I question the most ambitiously transformative aims that seek to make reparations into an instrument of society-wide structural change. I suggest that this conception not only overreaches practically and politically but that it threatens to bypass or aims to displace reparative justice as a distinct and distinctly victim-centered imperative. In doing so, it demotes the importance of recognizing individual victims themselves, whose status as bearers of rights and subjects of justice depends crucially on their standing to claim accountability and repair for violations to their individual persons.

Gender Sensitive and Transformative Reparations in Bosnia

On June 24, for the first time in the history of the Bosnian War Crimes Court, judges included compensation to a wartime rape victim as part of the Court’s ruling. Bosiljko Markovic and Ostoja Markovic were ordered to pay roughly $15,000 to the woman they raped during the war. The Court also sentenced each man to ten years in prison. The following Monday, June 29, the Court sentenced former soldier Slavko Savic to eight years in prison for raping a civilian during the war, and ordered him to pay roughly $16,500 to the survivor. Such reparations orders for survivors of wartime rape are a huge step forward in the transitional justice process following the 1992-95 Bosnian war. It is estimated that 35,000 women were raped during the conflict. Until now, Bosnian courts have encouraged victims to file claims for compensation in civil proceedings — which can be prohibitively expensive and also requires survivors to reveal their identities. Now that the War Crimes Court is willing to include reparations orders as part of its ruling, it is expected that many more women will come forward. Given the anticipated spike in reparations claims, the Court should bear in mind the international community’s consensus that effective reparations should be gender-sensitive, transformative and participatory as it proceeds in its important work. This paper traces the trajectory of reparations in the context of the United Nations Security Council’s Women, Peace and Security (WPS) Agenda, examines the importance of transformative and participatory reparations under this framework, and concludes with recommendations for the Bosnian War Crimes Court as it seeks to provide redress for wartime rape survivors.

Beyond Sexual Violence in Transitional Justice: Political Insecurity as a Gendered Harm

The growing literature on gender in armed conflict and the debates over post-conflict reparations for women, focus on the prevalence and harms of sexual violence. While this focus has recently been critiqued, there are few articulations of other types of gendered injuries. This article decentres the emphasis on sexual violence by examining the intersection between forced displacement and political insecurity. Based on extensive field research in Colombia, and using as an example a case study of an internally displaced women’s grassroots organization in Cartagena, Colombia, this article examines political insecurity as a specifically gendered harm. It reflects on the concrete circumstances of insecurity, on the relevance of traditional gender roles in the constitution of insecurity, and on the challenges for court-ordered remedies. This widening of the scope of attention also invites complex reflection on the possibility of transformative reparations in post-conflict situations.