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A Framework for Reparations in Transitional Regimes

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Abstract

Whereas, strategies of Transitional Justice comprises: (i) criminal proceedings, (ii) truth commissions, (iii) reparations, and (iv) reform of public institutions, this paper proposes a theoretical approach to the right to reparations for human rights violations in transitional regimes. Initially, the purpose of reparations would be to eliminate as much as possible the consequences of the illegal act and to restore the situation that would have existed if the act had not been committed. Thus, reparations can take several forms: restitution, compensation and satisfaction (or symbolic reparation). Reparations have links with the so-called historical crimes, because the history of mankind is full of episodes of genocide, slavery, torture, expulsions. Reparations offered to the Jews after the II World War is a prime example. But, observing the reparation method applied in relation to the Holocaust – which was to provide financial compensation to the State of Israel – many discussions have rejected the idea that the theory of compensatory justice is relevant when it comes to reparations involving large number of victims. Comes up a difficulty that belongs to the very idea of reparation itself: how much is the cost of a life unjustly taken? The application of the law seems to be confined to a mission that exceeds its own capacity. The theory of compensatory justice may become inconsistent when it comes to cases of systematic violations. The significance of the compensation must be replaced by a broader framework: gestures of recognition, confession, atonement, memory, social assistance and guarantees of non-repetition. These can overcome the simplistic idea of "devolution" that prevails in the theory of compensatory justice. Thus, a theory on reparations consists of four dimensions: "collective" and "individual" on one side, and "symbolic" and "material" for another.