Restitution, compensation and rehabilitation as cornerstones of 'victim-driven' transitional justice: From a rights-based to a responsibility-based approach to reparation politics

Truth, justice and reparations are the traditional pillars of transitional justice (TJ). The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation establish the right to “adequate, effective and prompt reparation for harm suffered” (art. VII b) as well as the duty to “provide effective remedies to victims, including reparation” (art. II d) in the wake of mass human rights violations (UNGA, 2006). Despite the fact that reparation schemes have been developed in transitional societies around the globe, and that compensations are mostly among victim-survivors’ primary demands, the implementation of comprehensive reparation schemes has faced severe limitations. In-depth studies with beneficiaries in different contexts point to a high degree of dissatisfaction over existing reparation politics (Ottendoerfer, 2018) and reveal a rather weak impact of reparations on reconciliation (Firchow, 2017), social cohesion (Bunselmeyer, 2020) and gender justice (Weber, 2017). Despite its familiarity with the shortcomings of existing reparation politics, TJ scholarship seems to lack conceptual clarity regarding the distinctions between reparations as part of retributive justice processes on the one hand, and administrative reparation programs on the other; as well as between the material and symbolic dimension of reparation politics. Moreover, when assessing reparations, victim-survivors’ role tends to be perceived as limited to that of beneficiaries or consultees, while in fact they are often the driving force behind reparation politics. This paper focuses on the design and implementation of administrative politics of restitution, compensation and rehabilitation in Timor-Leste, Guatemala, Morocco and Northern Ireland in order to reassess the potential of reparations as cornerstone of more ‘victim-driven’ (Vegh Weis, 2017) instead of victim-centered TJ policies. TJ’s current approach to reparations is characterized by a narrow rights-based approach that draws on a conception of victimhood based on passive narratives of undergoing violence, which risks to result in a reduction of the agency and complexity of survivor identities in post-conflict societies. Debates on reparation revolve around discussions on ‘victim hierarchies’, while narratives on perpetration of violence are backgrounded (Willems, 2020). By bringing Janna Thompson’s obligations-based theory of reparative justice (2002) to the realm of TJ, this paper aims to broaden the field’s approach to reparation politics. Based on a cross-case analysis, the authors argue that a focus on reparations as an obligation rather than a right allows us to think of victim-survivors not only as rightsholders, but also as civil society actors and drivers of change who play a fundamental role in transitioning from war and dictatorship to a more democratic society. By going beyond the victim’s individual account, a responsibility-based approach to reparations moreover offers the potential to put violations of socio-economic and cultural rights in a broader societal and historical perspective. Therefore, it can shed light on the entanglement of reparation politics in transitional societies with questions that exceed the classical (time) frames of TJ, such as processes of environmental and historical injustice (e.g., land and resource exploitation, slavery and colonialism).